Tort Law Essay

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Tort Law

• NEGLIGENCE is a fault-based civil liability system as a basis of liability, and considered a broad concept encompassing many types of harm • The tort of negligence is composed of a number of elements, most of which must be proved by the plaintiff (P). These elements are not all self-evident, rather they are conventional concepts that the crts have imposed in an effort to assist them in dealing with various issue the present in negligence litigation • The 3 core elements:

(1) the negligent act
(2) causation [showing link b/w D’s negligent act and P’s damages] (3) damage [vital part that triggers the claim and launches the litigation process] **keep in mind that D is not resp for every consequence – control devices put in place to keep negligence liability w/in appropriate boundaries: • duty of care

• remoteness of damage
*the manner in which the crts apply these 2 concepts reflect the social policy and current judicial attitudes to the extent of liability for negligent conduct Burden of Proof

• In torts the burden of proof is on a BoP (the P must prove that is it more probable than not, that the defendants negligence caused him harm(51% likelihood on all the elements i.e. DoC, SoC, causation, remoteness of damage = resp to plaintiff, but defendant only resp for defences)

Framework/ 6 Elements of a Negligence Action
*The P usually has the burden of proving the first five, while the D has the burden of proving the sixth • Duty of Care (*question of law – up to judges to decide) o Did D meet the requisite duty of care?

• Standard of Care (and its breach) (*question of fact) o Having identified and defined a DoC, the crt must then establish the applicable SoC…usually this means that the D must have acted as a reasonable person would have acted in similar circumstances (i.e. what is the SoC and was it breached?) • Causation (aka cause-in-fact)

o Even if D was under a DoC and breached the SoC, he will not be held liable unless his careless conduct actually was a cause of the plaintiff’s loss • Remoteness of damage o Once is had been established that the D carelessly caused the P’s injury, the crt must determine whether or not the relationship b/c the breach and the injury is too tenuous, or remote, to warrant recovery. In negligence, liability is generally limited to those losses that it was reasonably foreseeable would result from the D’s breach • Actual Injury/Loss

o Although perhaps implicit in the preceding pts, must nt that the P must establish that she suffered a legally recognized loss as a result of the D’s breach.

• Defences o Once the P has established a prima facie claim, the crt must address the issues of defences. The P’s damages may be reduced or eliminated on account of her own conduct (contributory neg, voluntary assumption of risk or illegality) or on account of other considerations (inevitable accident).

Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986) (Ont. C.A.) Facts: Young woman suffered debilitating stroke while taking oral contraceptives. She is suing manufacturer on the basis that it failed to warn her of the risk of stroke. Issue: What is the manufacturer’s DoC, did they breach SoC, and did the breach cause the injury? Decision/Analysis: In favour of the P.

1. Manufacturer had a duty to inform physician about risks, on a continuing basis (learned intermediary rule) 2. Ortho did not meet standard of care as they failed to warn the doctors sufficiently (i.e. evidence showing that a greater warning given to American doctors as opposed to Canadian ones) 3. Causation was evaluated using a subjective test (trier-of-fact evaluates the claim made by the P – P says that had she have known, she would not have used the product) as opposed to previous objective test of reasonable patient Ratio: W/in product liability cases, reasonable person is not applicable (in reference to the consumer), when looking at causation. Rather, it is subjective.

Ratio: Medical Products and the Learned Intermediary Rule(there are obstacles to the direct communication of warning info from manufacturer directly to consumers, for these products are supplied by health-care profs and there is not practical way for the manufacturer to inform the ind patient directly. Nt Exception – the learned intermediary rule does not apply to all medical products, b/c sometimes the manufacturer can give info and warnings directly to the consumer i.e. over-the-counter and some prescriptions such as birth control pills. BC pills, due to the fact that there is limited involvement and supervision and the long-time usage, there is a requirement that there also needs to be a direct warning from the manufacturer.

Hollis v. Dow Corning Corp. (1995) S.C.R. (S13) *affirms principles laid out in Buchan – puts burden 
on manufacturers to disclose all known risks through the learned intermediary rule Facts: D manufacturer (Dow) failed to warn surgeon of the risk that P’s breast implants would rupture Issues: Is there a DoC to warn consumers of dangers? If so, what is the SoC to do so? Did breach of SoC (inadequate warning) be causally linked to rupture of consumer? Decision/Analysis: In favour of P.

1. DoC(Duty to Warn and a Special Duty for Medical Product Manufacturers: The Court held that a manufacturer has a duty to warn consumers of dangers it knows or ought to know

2. SoC(
a. This duty is a continuing one, covering not only dangers known at the time of sale, but also those discovered later. The greater the potential risk from ordinary use, the more explicit the warning must be. Medical product manufacturers particularly bear a heavy onus to provide clear, complete and current information. *parallels to Buchan b. Learned Intermediary Doctrine:  Where a product is highly technical in nature and is to be used only under the supervision of experts, a manufacturer may discharge its duty to warn consumers by warning a “learned intermediary,” such as a physician.

The Court found that the doctrine applied to Dow’s case, and that Dow did not meet the stringent requirements of providing Ms. Hollis’s doctor with “clear, complete and current” information. Dow failed to warn doctor, and because the doctor was not in position to warn P, D is thus liable for failing to meet SoC

3. Causation(Dow argued that its failure to give adequate warning did not actually cause the plaintiff’s injuries because:

a. A reasonable person in Ms. Hollis’s position would have proceeded with the implants even if informed.

Crt reject this argument, and using a subjective test (and not a modified objective test) concluded, using her words, that she would not have had the surgery if she had been given appropriate warnings. *subjective take – parallels to Buchan Ratio: Manufacturers of potentially dangerous products, especially medical products, must disclose information about any problem as they become aware of it, even if they cannot yet draw definitive conclusions about its cause Ratio: adoption of a subjective test to determine whether the D’s breach caused the P’s injury in the realm of manufacturer products

(Ontario Tobacco Cases
o Caputo v. Imperial Tobacco Ltd. – manipulated levels of nicotine, advertising to youths o Spasic Estate v. Imperial Tobacco Ltd.
o McIntyre Estate v. Ontario (Attorney General) – contingency fee o Ragoonanan v. Imperial Tobacco Canada Ltd. – lost family in fire caused by careless smoking; alleges Imperial could have sold ‘fire safe’ cigarettes

Caputo v. Imperial Tobacco Ltd. (1996) (S 17)
In this class action, the plaintiffs moved to certify a class action against the three major tobacco manufacturers claiming damages for personal injuries suffered by millions of Ontario smokers and their families. They alleged that the manufacturers designed and produced inherently defective and dangerous products and marketed them with the knowledge that they were addictive and harmful. The plaintiffs claimed that the pleadings disclosed a cause of action that an identifiable class and common issues existed, that a class proceeding was a preferable procedure, and that there were plaintiffs capable of representing the class’ interests. The plaintiffs’ motion for certification was dismissed.


(a) An Introduction to the Concept of Duty
(i) General Duty of Care Test
Donoghue v. Stevenson (1932) H.L. *established the notion of neighbour, foreseeable and proximity in reference to the DoC Facts: the P drank ginger beer manufactured by the D, and a decomposed remains of a snail floated out. She became ill as a consequence. Decision/Analysis: D was negligent.

• This case formulates a general conception of relationships which give rise to a DoC, aka the neighbour principle • “Who then, by law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

• From this comes two intersecting ideas identified as pertinent in established DoC: proximity and forseeability (but not explicitly extracted into law until later judgments).

Ratio: a manufacturer owes a DoC to the ultimate consumer to take reasonable care to prevent defects in its products with are likely to cause damage to person or property. Ratio: General DoC neigbour principle established

(ii) Development of the Modern Law Notion of Duty
• Initially, the Canadian crts were reluctant to extend Lord Atkin’s formulation to those special categories of cases in which they previously had refused to recognize a duty or had imposed a limited duty. But in the 1960s, appellate crts really started applying it and became prevalent at CL. o The neighbour principle has ushered in an unprecedented expansion of negligence liability ranging to various types of relationships. But, consideration has also been given to public policy issues and whether or not the recognition of a legal obligation to exercise care is favour of the P is in the best interests of society

(iii) Anns and the Supreme Court of Canada
Anns v. Merton London Borough Council (1977) H.L.

• A new approach for analyzing existing categories of negligence and for recognizing new categories in novel situations—largely restates Donoghue • Sets out for a two-stage analysis of the DoC issue, which separated the consideration of foresseability from the policy assessment of societal need o A prima facie duty will exist when there is sufficient foreseeability of risk of harm to another; can be resigned by using public policy (i.e. proximity) and case law. Ratio: The Anns Test:

1. It requires first a sufficient relationship of proximity based upon foreseeability 2. If ( answered affirmatively, necessary to consider whether there are any considerations which ought to negate, reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. Onus then shifts to the defendant to demonstrate why the duty ought to be negated or limited.

**the Anns dictum was adopted in Kamloops and has applied it consistently in a number of important cases: Stage 1 – requires no more than reasonable foreseeability of damage Stage 2 – invites a full and open debate about the societal costs and benefits of recognizing a DoC (a prima facie DoC can be negated by policy considerations, or can be restricted or modified as a result).

Cooper v. Hobart (2001) SCC *in 2001, the crt began to turn away from the Anns interpretation and reformulated it in a manner that appears to reflect the concerns that motivated the English crts – a more conservative approach relying on assessment of a duty being fair, just and reasonable.

The S.C.C. restated the DoC concept in a way that may address at least some of the concerns raised by Anns Facts: investors lost over $180m due to allegedly fraudulent actions of mortgage brokers, and they claimed that had Registrar suspended Eron when irregularities found, would have avoided/diminished losses. Issue: whether the D Registrar of Mortgage Brokers in B.C. was under a DoC to investors who had suffered financial losses caused by the wrongdoing of a mortgage broker? Decision/Analysis: D not liable

• D did not owe a private DoC to the investors – w/in analysis, they laid out the DoC issue. First, it is necessary to decide if this case falls w/in a recognized category or if it is a novel DoC. If it is already been recognized, then a prima facie DoC may be posited. But, if it is a new category, then a modified Anns/Kamloops test must be followed – (a) proximity, (b) forseeability (c) policy. • Applying this test to the facts of the case, the crt here concluded that there was insufficient proximity b/w the D and P’s, and that concl was further supported by residual policy factors, including the nature of the D’s statutory function and the risk of the indeterminate liability Ratio: For novel cases DoC cases, a modified Anns test is now a 3-part test:

a. Forseeability of damage to the P remains an essential element, but is not sufficient in itself to establish a prima facie DoC b. Must be proximate relationship b/w the parties as well to establish DoC relationship (closeness and directness of the parties) **Cooper’s addition to the test STAGE TWO:

c. Deals with residual policy factors

Odhavji v. Woodhouse (2002) *applies Anns test – fails at second stage with Cooper Facts: action brought by the estate of a man fatally shot by police. Claim for negligent infliction of emotional distress for the failures of the police to ensure that the officers participate fully with the special investigations unit. Issue: Is a DoC owed to the family by the Police Service Board by way of an individual lawsuit? Decision/Analysis: Anns test is applied to determine whether or not these individuals owe a duty of care to the relatives of the man who was shot. STAGE ONE:

a. Police owe a statutory duty to ensure that members cooperate fully and those members have an obligation to cooperate fully. Therefore it is reasonably foreseeable that if they failed to do that then harm was caused. *But, need more than reasonable forseeability to justify finding a new duty of care, first stage of the anns b. Fails at this stage(There is not a sufficient relationship of proximity btwn the board and the individual to determine a duty of care. Determined by looking at the role of the board, not resp for the day to day conduct of the officers and there is no statutory obligation to ensure that the officers cooperate with the SIU **Nt – the first stage is met with respect to the police chief, and it was held that the plaintiffs have a good cause of action when it proceeds to trial with the Chief specifically.

Bella v. Young S.C.C. *concern with proximity and whether university owed a DoC to student Facts: a prof received an essay from a student and believed that the student was reporting her own sexual abuse. The concern was reported to the authorities. The professor/school said that they were protected by a statute to report potential situations. Won damages at trial, overturned on appeal and then to the supreme Decision/Analysis:

• DoC(university owed the student a duty of care when making a report as there is a relationship between the university and the student • SoC( due to power over the student potential employment in her field, owe the student a duty of care to investigate before making such a report/allegation o must have a reasonable cause to make the report in the first place, don’t have to conduct your own investigation, but must have a reasonable reason to make the report o plaintiff alleged that the report prohibited her from getting into the school, but in fact her grades were not good enough to get in, consider that had she upgraded her grades, completed volunteer experience to potentially improve her file. Due to the red flag, unable to get a volunteer position o took two years for the CAS to investigate, but only 24 hrs for them to clear up the misunderstanding ***COURT TOOK A GENEROUS APPROACH TO THE CLAIM***

(b) Foreseeable Risk of Injury
Moule v. N.B. Elec. Power Comm’n (1976) 70 D.L.R. (3d) 741 Facts: Kid climbs tree where there is a hydro line.
Decision/Analysis: dismissed.
• DoC(the defendant had a duty to take precautions and found that they did, due to height of the wires, removal of the limbs near the limbs = adequate precautions, not a duty of care to do more, but it was negated by STAGE ONE: o Court finds that while it is reasonably foreseeable that at child would be likely to climb a tree, since this child used a ladder, and climbed to an unusual height, this particular circumstance was not foreseeable, and the electric company did take reasonable precautions o too unlikely to prove that the defendant owed a duty of care to do more than take the precautions taken to provide a higher standard of care.

(c) The Foreseeable Plaintiff Test
• the essence of issue of foreseeability of damage in relation to DoC is that it is tied to the P. A DoC is not owed to the world, it is owed only to those whom the D’s might reasonably foresee as being adversely affected by his failure to take care.

Palsgraf v. Long Island Ry. Co (1928) N.Y. C.A. *It is an unusual fact situation where the D has been guilty of negligent conduct but the P was not w/in the scope of the risk created, and is seen in the following American case… Facts: P standing on train platform, two men run for train, aided aboard, drops unmarked package and explodes, threw down scales at other end of platform, hit P Decision/Analysis: No DoC

• “Proof of negligence in the air, so to speak, will not do.” o bodily security is protected, not against all forms of interference or aggression, but only against some o nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed – therefore, no duty o risk reasonably to be perceived defines the duty to be obeyed

• The guards may have been negligent, and they reasonably have perceived some risk to the passenger and his parcel, but the P was beyond the range of foreseeable danger. o Is it reasonably foreseeable that guards helping a man with a package would ultimately result in scales falling on the head of a woman on the other side of the platform? No.

• No need to address causation or proximity if there is no duty of care. In this case, there is no privity to the woman as there is no way to know that she could forseeably be an injured party to the action of a man helping another man with a package onto the train Ratio: the P must prove both that the D’s conduct gave rise to a duty of care and that the duty was owed to her. Does not mean that the individual P must be foreseeable, but rather that the P must belong to a class of persons foreseeably at risk. **Nt – the breadth of the foreseeable P test varies depn with the type of interest at stake e.g. a very broad test is applied in cases of rescuers, whereas a narrow test is applied in nervous shock cases. By manipulating the foreseeable P test, the crts have been able to control the ambit of recovery in negligence

• CL has traditionally distinguished b/w misfeasance (positive acts) and nonfeasance (failures to act). As a general rule, the crts have been willing to impose liability for losses caused by the former, but not the latter. o Exceptions: duties of affirmative action – the primary role of negligence law is to oblige ppl to act in a manner that is not dangerous to others. As a general rule, you must not expose ppl to the risk of injury, NOT that you must help them. But, over the yrs, the dichotomy b/w misfeasance and nonfeasance was applied with considerable rigor.

(b) The Duty to Rescue
Osterlind v. Hill (1928) U.S.
Facts: P, who was in a state of visible intoxication, rented a canoe from D. Shortly afterwards, the canoe was overturned, and the P clung to the canoe and shouted for help for 30 mins before he drowned. D, who was aware of the situation, ignored Osterlind’s cries for help. Decision/Analysis: Hill was held to have no legal duty to take reasonable steps to rescue the deceased. He had not contributed to the perilous situation in which Osterlind found himself and he was not resp for his safety. No duty of affirmative action recognized by law.

In the latter part of the 20th C, judicial policy began to shift however, with a greater willingness to translate social and moral obligations into legal obligations, and changing public attitudes and expectations in an increasingly dangerous society encouraged crts to recognize a growing range of duties of affirmative action to assist others in danger and in need of help. Nevertheless, the crts have continued to assert that there is no general duty to rescue a person who finds herself in danger from a source completely unrelated to the D. To this extent, the parable of the good samaritan continues to portray an ideal standard of conduct for the moral person, not the legal obligation of a reasonable person.

The main conceptual vehicle used to extend the range of duties of affirmative action is that of a special type of relationship. A D is under a duty of affirmative action if she stands in a special relationship to the P. **Determining this relationship is decided on a case-by-case basis.

Matthews v. MacLaren; Horsley v. MacLaren (1969) Ont. *crts recognize a duty to rescue, BUT there has to be causation to be held liable Facts: A group of people partied on D’s yacht, all were intoxicated. Matthews and Horsley were passengers. Matthews falls overboard through his own stupidity. D tries to back up the boat (wrong procedure). Horsley dives overboard in an attempt to save Matthews and dies as well. Decision/Analysis: D not liable

• Special DoC(D owner/operator of a pleasure boat is under a legal duty to take reasonable steps to rescue a passenger who fell overboard through no fault of the D. A number of factors made the relationship special. They included the authority and control that a boat owner has over the passengers, the implied assumption of resp of the boat owner for the safety of his passengers , the trust and reliance that his passengers place on the boat owner, and the expertise and competence that passengers may reasonably expect of a boat owner. o there can be said to be a special relationship here: relation b/w the master of a pleasure boat and his invited guest should require a legal duty to aid and rescue (CSA impose duty of helping enemy aliens) o The court uses the Canada Shipping act—must rescue anyone in peril at sea, to analogize that Maclaren did have a duty to rescue Matthews.

• SoC(In any event, once a rescue is undertaken, the rescuer has a duty to act in due care and thereafter will be liable for his negligence.

• Fails at Causation(Burden is on the plaintiff to show that the defendant’s negligence was the effective cause of the harm, and the evidence did not indicate that Matthews could have been saved but for the negligence of the defendant, therefore there can be no liability Ratio: In determining whether there is a duty to rescue the general rule is as follows: (1) strangers to risk(no duty vs. (2) Contributor to risk(duty Ratio: because the owner/operator is in a position of supervision he has to respond to a situation of danger and once you embark on a rescue as he did you have a responsibility to follow it through with due care.

**common law position: no duty to rescue a person “in peril from a source completely unrelated to the defendant”

Relationships Requiring Rescue
1) Relationships of economic benefit
2) Relationships of control or supervision
3) Creators of dangerous situations
4) Reliance on Relationships (once I intervene, you rely on me) 5) Statutory Duties (e.g. statute says I hit you with my car I must help you) **Cases usually don’t fall neatly into one of these categories, but the more they fit in the more likely there will be CL DoC

(c) The Duty to Control the Conduct of Others
Jordan House Ltd (1973) S.C.C. *Relationships of Economic Benefit involve a DoC to control or supervise behaviour Ratio: Tavern owes a DOC to patrons to see that they do not harm themselves while intoxicated and get home safetly. The harm that ensued was that which was reasonably foreseeable by reason of what the hotel did (turning P out) and failed to do (in not taking preventative measures).

Crocker v. Sundance Northwest Resorts Ltd. (1988) S.C.C. *Analysis similar to Jordon House – tavern resp. b/c of invitor/invitee relationship, with more of an emphasis of authority and control Facts: P rendered quadriplegic after participating in resort tubing competition, after being obviously intoxicated. Issue: Did the defendant breach its duty to the plaintiff by failing to take steps to prevent him from participating in the race? Decision/Reasoning: D liable (relying on Jordan House – commercial establishment subject to a duty to control intoxicated guests)

• DoC(The crt imposed a duty to take reasonable steps to prevent the P from participating in the content even though the D had supplied only a small amount of the liquor consumed. It stressed the authority and control that the D had over the race o the D’s K of incapacity, the D’s commercial interest in the contest, and the heightened danger of racing while intoxicated made the relationship sufficiently special to generate a duty of affirmative action on the D. Ratio: due to special relationship (commercial establishment resp for patron – based on the condition listed above), there is a required duty to act positively against visibly intoxicated guests.

**Nt – as a general rule, when a person participates in dangerous sporting event, there is NOT affirmative duty to control that person’s behaviour. BUT, exception in this case b/c the hotel was setting up this dangerous race as a way of promoting economy (also, supplied liquor, had employees in charge, let him participate even though they knew he was drunk) – on this basis, hotel could not characterize itself as a stranger in this case – thus, in this case, there is a special relationship

Stewart v. Pettie (1995) S.C.C. *the S.C.C. extended the DoC to an innocent 3rd party who was injured by an intoxicated person after he left the D’s drinking establishment, but in this case it was found that liability could not be extended b/c of the fact that there were sober ppl involved Facts: 4 leaving dinner theatre (2 not drinking), Pettie drove and got into minor accident, leaving Stewart a quadriplegic Issue: Is there a relationship of sufficient proximity to found a DoC b/w user of road and commercial establishment? Decision/Analysis: in this case, crt found that reasonable care had been taken

• DoC(It is a logical step to owe a third party a duty of care who might reasonably be expected to come into contact with patron – a member of a class of persons expected to be on the highway o special relationship alone is not enough to declare positive duty to act – what is of more importance is FORESEEABILITY of the injury o found that serving persons past the point of intoxication did not, in itself, pose a foreseeable risk (not apparent they violated legislation, as he didn’t exhibit signs)

• Fail at SoC(due to special relationship, duty to act reasonably, but does not mean host cannot consider other circumstances i.e. he wouldn’t drive b/c sobers wouldn’t allow it

• Fail at Causation(failed due to sobers discussing/allowing Pettie to drive Ratio:
A DoC owed by a commercial host is due NOT ONLY to the patron, but ALSO to 3rd parties (such as users of the highway) who could foreesably be injured. The duty is to take reasonable steps to control the conduct of the intoxicated customer or, in some other way, to protect innocent persons.

Liability of Alchohol Providers by statute(the CL rules regarding the liability of taverns are supplemented in Ont by the statutory liability set out in s. 39 of the Liquor License Act R.S.O. 1990:  s. 39 If liquor sellers (a person or an agent or employee of a person sells liquor) serve alchohcol to patrons to the point where they are in danger of causing injury to themselves or others, they (person/employer) are liable if:

1. the patron commits suicide or meets death by accident while so intoxicated,

2. If the person causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor **only liable to patron for death, not for damage – damages can only come from ‘other’ people (damage caused by patron to another person)

**a DoC to intoxicated persons and to those who are injured by intoxicated persons may extend beyond the commercial supplier of liquor to employers who supply liquor at office parties – see Hunt v. Sutton Group Incentive Realty Inc. (2001) Ont. Sup Crt – xmas party case (but settled so we don’t know the outcome). Mrs. Hunt, while at employer party, is clearly intoxicated – employer took notice to her state, but did not sufficiently comply with the DoC, which is a “duty to make sure that she would not enter into such a state of intoxication while on his premise and on duty so as to interfere with her ability drive home afterwards”

**Prevost v. Vetter, on its trial in B.C. – kids having a party, parents awoken to tell them police had come, kids say its all good, parents go back to sleep, niece drives victim home drunk – liability of social hosts? Overturned on appeal, b/c it was decided using summary trial provisions (going on the basis of pleadings and VERY LIMITED testimonial evidence), then it was settled so we don’t know the outcome. While the partners would not have assumed any liability if they had slept through, b/c they were awoken and had awareness of the situation, she then is subject to DoC (also, DoC b/c she has a ‘paternalistic’ relationship as well – i.e. she condoned drinking and in the past has taken care of drunken kids)

Childs v. Desmoreaux (2004) Ont C.A. *social hosts and drinking – despite above cases, the crts have been reluctant to extend the duty to “social hosts” b/c of the inordinate burdens it would place on them Facts: Social hosts have a BYOB party. D comes to party with 2 friends. He is a heavy drinker. After his friend got into an altercation at the party, they decided to leave. D was DUI and paralyzed P. P suing Dand the social hosts. Issue: Do the social hosts owe a DoC to the users of the road when a guest at a BYOB party has been drinking? Is this a new duty of care or just the same as the commercial host liability? Decision/Analysis: It is a new duty.

No general proximity, therefore no duty for the social hosts.

• Court found that the social hosts did not know D was drunk while he left, as they had no reason or way to monitor his alcohol. Social host liability is not for profit, not regulated by statute, don’t carry insurance, there is not usually an expectation of guest to be cared for (no parental relationship). o social host is not like a commercial host

o To make someone liable for the conduct of a second party they must have been implicated in the creation of the risk, in this case the host did not supply, service or supervise D (no supervision/control) Ratio: In terms of third party, note that this case says that in general, you’re not liable to a third party unless there is a relationship of control or reliance, or you participated in the creation of the risk for the second party *theme running through all the above cases in this section is that the defendant is creating and controlling the risk, thus resp for avoiding it. Also, the recognition of autonomy…competent ppl can engage in risky behavior and other do not have a duty to interfere, UNLESS there is a special relationship

(d) The Duty of Affirmative Action For Police – A Duty to Prevent Crime and Protect Others Jane Doe v. The Metropolitan Toronto Commissioners of Police (1998) O.J. *expansive view of DoC with reference to police – a less
conservative approach as seen in Hill Facts: P was sexually assaulted by a serial rapist who operated in the vicinity of 2 Toronto streets. He targeted single, white females who lived in apartments to which he gained entrance through the balcony doors. The D police, who knew that the sexual assaults would continue until the rapist was apprehended, did not warn women in the area. Issue: As per the governing statute, police act, it is held that duties are owed to the public at large. The P has to prove that she is owed a private duty of care.

Decision/Analysis: To determine this, crt looks to Anns *predates Cooper v. Hobart • DoC(owed. P relies on evidence that it was (foreseeable) b/c cops knew rapist was going to attack again, and for proximity relied on the fact that she belonged to specific target group

• SoC(Police have duty to warn in foreseeable circumstances (but that will not always apply depn on circumstance), as well as a duty to protect. Exception does not apply to duty to warn and they did have a positive duty to warn. They also have a duty to protect, and should have been provided with some forms of protection, and rather, they actually ended up using her as bait

• Causation(if the P can show that (1) w/warn, she would have taken proper precautions, and (2) if they had protected, rape would not have happened, then there would be liability established. o Cause-in-fact was established on P’s evidence that, had she been warned, she would have taken protective measures and would have prevented the assault. Ratio: The P had become a part of a narrow and distinct group of potential victims, and thus created a special relationship of proximity

**This case can be contrasted with a narrow scope of police duty seen in the eng decision of Hill v. Chief Constable of West Yorkshire (1988). In this case, the deceased’s family sued claiming that, had the police acted reasonably, they would have been able to arrest a serial killer before her killed their daughter. The crt struck out the statement of claim, stating that the police owe no DoC to the victims of crime, unless the offender commits the offence while in police custody or after escaping custody. Thus, this eng decision which goes another way…police owe no DoC unless injury occurs when victimizer applies crime while in custody of cops or while having escaped such custody.

**Landlords have been held liable when tenants have been attacked where assailants have gained access to the building of a result of lacking security.

**Issue: how broadly should this affirmative action ought to be extended? With affirmative duties, to affirm one, you need to look at the special relationship of the parties involved nt – potential liability of health professionals(what is the duty to protect both patients and others threatened by patients? In Tarasoff v. Regents of the University of California (1976) US patient tells therapist he is going to kill gf and physician contacts university authorities. Patient kills gf and family sues therapist and university for failure to warm. D’s challenged P’s claim at preliminary stage, there is no cause of action in law. Cr disagreed and concluded that it did, and sent the matter onto trial.

In sending it onto trial, he is rejected therapist’s argument that he owed patient a duty of confidentiality Crt concluded that duty of confidentiality about patient’s disclosures ends where social danger begins. This case was settled, so we not dealt with in crt. *has been refereed to in Canada, and this case says that the healthcare provider is under a legal duty to warn others who may be in danger by the patient *health provision legislation – allows healthcare providers to breach duty of confidentiality in some cases such as the one mentioned above.

(1-iii) Special Duties of Care (Residual Policy Factors)
• duties of affirmative action
• the duty owed to rescuerers
• nervous shock
(a) The Duty of Care Owed to Rescuers
• The issue of liability to a rescuer arises where the D has negligently placed X in a position of danger and the P is injured or killed in the course of a rescue attempt of X. The changing judicial attitude to rescuers vividly illustrates the profound influence of judicial policy on the DoC issue. At the turn of the 20th C, the crts had little sympathy for rescuers, and supported a conservative p.o.v. for a variety of legal reasons could be produced to reject the claims of rescuers, including that there was no DoC on the grounds that the rescuer was unforeseeable, that the chain of causation was broken by the willful act of the rescuer, or that the rescuer had consented to the injury.

The 20th C witnessed a spectacular reversal in judicial attitudes to rescores. The crts now encourage altruistic conduct by protecting rescuers from virtually all losses arising from the rescue attempt. The generosity of the crts to rescuers does not, however, extend to dispensing with the requirement of fault on the part of the D…

Horsley v. MacLaren (1969) ON
Facts: See above – boating trip; friend falls overboard; rescuer dies after jumping into the water. Initial falling over board was not the fault of anyone else. There was a duty to rescue for the captain (statutory duty) and he did attempt to. Issue: Is D liable for harm to a rescuer where the D’s actions were responsible for prompting the rescuer to act? Decision/Analysis:

• DoC(while there is a duty that D has to the rescurer if he put the rescurer in the position if the first place, none could be said to exist here. No duty, since no new situation of peril was created by D’s negligence which would have induced Horsley to act. o “although the procedure followed by D was not the most highly recommended one, I do not think that the evidence justifies the finding that any fault of his induced Horsley to risk his life by diving as he did.” o A mistake in the rescue would have to be extreme.

▪ Dissent says that the rescue attempt was in fact so negligent that there was grounds for liability. Ratio: Where one creates a situation of peril he would be liable for any harm which came to a rescuer. A rescuer is a foreseeable plaintiff, provided that his intervention was “not so utterly foolhardy as to be outside any accountable risk and thus beyond even contributory negligence”.

**English decision of Videan v. British Transport Comm. (1963) referred to in Horsley – forseeability is manipulated and applied by the crts. Child puts himself in danger by wandering into train tracks, rescuer is the father (who is the station master) – and the DoC are constructed differently here – no DoC owed to trespasser (child) b/c not foreseeable, BUT the presence of the rescuer IS reasonable foreseeable and thus owes station master of DoC… “it seems to me that, if a person by his own fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger.

He owes a DoC to such a person above all others. The rescuer may instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it” – this policy is promoted by a generous interpretation of reasonable foressability in favour of finding a DoC to rescuers.

(b) Duties to the Unborn – 4 categories
• Preconception tort: when a person suffers a disability that can be traced to the effects on his/her parents of the defendant’s negligent conduct prior to the person’s conception o blood transfusion, prescribed drug to mother, one parent exposure to chemical and child is more susceptible to cancer *causation is difficult to prove • Prenatal tort: when negligence during a women’s pregnancy harms the foetus o in this case, you need to apply the negligence framework o If negligence causes a miscarriage or stillbirth, no damages are awarded for the loss of the foetus or the loss of the companionship of the expected child. o If a child is born alive, he/she can recover damages for consequences of prenatal injuries that were caused by neg. of the D o If he/she dies of such injuries after birth, an action can be brought for wrongful death, however children have no cause of action against their mothers (Dobson)

• Wrongful Life and Wrongful Birth: negligent failures to provide women with full info regarding the risks they face of giving birth to children with disabilities o deprived of the right to make fully informed decisions o claims on behalf of child (wrongful life) and by parents (wrongful birth) for cost of raising disabled children *Cdn courts have not accepted wrongful life claims – ‘premise is offensive’, but willing to entertain wrongful birth o arise only if woman in question would have had access to a legal abortion and would have chosen to undergo procedure

• Wrongful Conception or Wrongful Pregnancy: Courts routinely award damages for add’l costs, including pain and suffering, associated with the unplanned pregnancy and the need to undergo a second sterilization operation. o Courts less willing to award damages for costs of raising an able-bodied unplanned child

Dobson v. Dobson (1999) S.C.C. *pre-natal injury category

Facts: A pregnant woman was involved in a car accident which resulted in damage to the foetus (as a result of her negligent driving) who now suffers permanent mental and physical impairment. The guardian for the child is the P in this case. Grandfather is suing mother in hopes of getting money to cover costs of raising child with special needs *here the mother wants to lose Issue: Should a mother be liable to her child arising from a prenatal negligent act which allegedly injured the foetus in her womb? Decision/Analysis: No – duty only exists for third parties to prevent foreseeable harm to unborn children (i.e. drivers are liable for injuries sustained in utero by born-alive children)

• Anns test

a. proximity
b. forseeability
*both are satisfied, CLEARLY it both are answered in the affirmative: (1) it is reasonably foreseeable that driving negligently can lead to harm of child, and (2) the mother are fetus are considered legal entities related in the closest form possible. BUT the duty dies in policy STAGE TWO:

• Moral Argument: Imposing a duty of care would violate (intrusion) the privacy and autonomy rights of pregnant women. There can be no affirmative duty that violates these fundamental rights. • Judicial Administration Argument: There is a need for judicial restraint in the development of tort law as it pertains to sensitive and far reaching issues of public policy. Also, difficulties inherent in articulating a judicial standard of conduct for pregnant women; the most mundane decisions in a pregnant women’s life would be subject to court scrutiny

• Deterrence argument: Holding that pregnant women hold a duty to their foetus might deter women from having children.

• Economic argument: Could open flood gates to insurance claims, what would the fallout be to the insurance industry in terms of premiums. Ratio: A mother should not be liable in tort for damages to her child arising from a prenatal negligent act which allegedly injured the foetus in her womb, because to do so would impose unique and unacceptably great infringement on her fundamental rights under the Charter.

(c) Nervous Shock
• There are particular rules and limits to its applicability, and crts are much less receptive to this claim, especially if unrelated to physical harm

• this can occur when someone else in injured and another claims that they suffered mentally i.e. indirect injury

**In cases of nervous shock, the limits to this special DoC are: • reasonable foreseeable plaintiff
• forseeability of the event

Rhodes v. Canadian National Railway (1990) B.C.C.A.
Facts: P’s son killed in Alta. train crash, mother on Vancouver Island and not at the scene of the accident, but she hears about crash and doesn’t know if her son was killed. She finds out later he has died and 8 days later she see the accident scene. Issue: Is a DoC owed to the mother who suffered nervous shock? Decision/Analysis: No.

• DoC(Applying the Anns test: proximity of time and space does not pass since she was not close enough, did not see aftermath and did not learn about the death until a while later. Claim fails b/c she was not w/in the scope of the duty

• while relationship b/w mother and son “exceptionally strong”, fact that she got to accident 8 days after does not establish req’d proximity relationship Ratio: DoC for nervous shock rests on whether the psychiatric illness was a reasonably foreseeable consequence of D’s actions (not just proximate relationship), this fails b/c it was not reasonably foreseeable for the D that her nervous shock would be a direct consequence of their actions *crts concern – how you would ever impose limits on liability? Crts skeptical of mental disorder, and that it is as serious and debilitating as P may be claiming – not an expansive approach

Strong v. Moon (1992) B.C.S.C. ( followed decision in Rhodes Facts: “road pizza” case
Issue: Did D owe a DoC to the P?
Decision/Analysis: Claim dismissed – follows decision on Rhodes. • neither locational proximity (not at scene), nor was plaintiff closely or directly affected

Bechard v. Haliburton Estate (1991) Ont. C.A. *exception – in this case claim for nervous shock was allowed
Facts: P was passenger in a car that collided with a motorcycle, and while motorcyclist law on ground, another car drove over the injured despite the P’s best attempts to stop them Issue: DoC? Was the nervous shock reasonably foreseeable by the D? Decision/Analysis: Claim allowed – D is liable.

• DoC(in this analysis, b/c it is settled law that a rescurer who witnesses a horrible accident is entitled to recover damages, it should be extended in circumstances where the P was performing a role similar to that of a rescuer. Proximity AND forseeability are satisfied in this instance. Ratio: D liable in psychiatric harm unaccompanied by physical injury if P is:

1) a rescuer responding to emergency created by D’s negligence (as in Bechard)

2) a person w/in ambit of foreseeable physical risk from D’s negligence

3) a secondary, relational victim who experienced trauma after witnessing a serious accident involving a loved one or its immediate aftermath – must in addition be: ( relational proximity: satisfied if P is a close family member of person injured by D’s negligence (as in Rhodes) ( locational proximity: being at scene or witnessing immediate aftermath at the scene or in the hospital (NOT in Rhodes, or Strong) ( temporal proximity: short span of time b/w witnessing event and the onset of psychiatric illness (NOT is Rhodes) Ratio: the right of recovery has been extended to persons who have suffered nervous shock as a result of witnessing injuries inflicted on non-relatives, so long as P falls into limits of reasonable forseeability. *must also be noted that damages recoverable only if the harm amounts to a recognized psychiatric illness

Mason v. Westside Cemeteries (1996) Ont. Gen. Div. *the special limitations placed on actions to recover damages for nervous shock unaccompanied by physical injury have been called into question in several ON crt rulings

Facts/Decision/Analysis: awarded damages to P for “considerable emotional upset” he suffered when a funeral home lost the cremated remains of his parents’ bodies. Here the crts are challenging the inability to value phsychological harm – “it is recognized that emotional pain is just as real as physical pain and may, indeed, be more deabilitating” • trivial physical injury attracts trivial damages, so applied to trivial emotional injury – see no reason to refuse if does not degenerate to illness – more appropriate to limit frivolous actions based on foreseeability

Anderson v. Wilson (1999) ON C.A. *claim allowed, even though it did not fit w/in the traditional parameters of the claims permitted by the crts – but settled out of crt Facts: clinic was performing diagnostic tests and while performing ECG’s the technician had Hep B and did not practice proper sterilizing techniques. Once this was discovered, everyone who was a patient was notified and was suggested to get tests Issue/Decision/Analysis: class actions brought against 2 classes claiming: (1) negligent infliction of nervous shock (of those who did not contract), and (2) negligence claim against those who actually contracted Hep B. Settled out of trial BUT C.A. allowed this to go forward and was willing to hear it…we are not sure whether we need a recognized physciatric illness, or just a high level of anxiety -in this case it is arguable that the D’s alleged negligence had the foreseeable consequence that it would caused shock…given the uncertain state of law on tort relief for nervous shock, it is not approporiate that the crt should reach a concl at this early stage and w/out a complete factual foundation. It cannot be said that in this case that it is plain and obvious that the claim for the tort of metal distress standing alone will fall.

Vanek v. Great Atlantic & Pacific Co. of Canada (1999) Ont C.A. *BUT, moving from Anderson to this case, the crts here held fast to the trad limits on recovery of damage Facts: daughter at school drank grape juice with oily
substance. Parents suffered negligent infliction of nervous shock and consequences of inability to work, etc.

• DoC fails(Claim of parent’s dismissed based on forseeability – not reasonably foreseeable that this incidenet would affect parents in such a serious way. The actual event was not witnessed by them, nor was it ‘distressing in the extreme, or horrifying and gruesome (bechard). Ratio: emotional distress of parents not reasonably foreseeable if they were not there and it did not affect them in some serious and gruesome way.

• There are two issues within SoC
1. what is the SoC required? (question of law)
2. Has P proven that D breached the SoC? (question of fact) • The issue of SoC and its breach raises difficulties – judges and jurors struggle to reach decisions that are both fair and consistent. The q of carelessness is substantially open-ended. Canadian crts have resisted the temptation to reduce the issue to systematic mathematical or economic formulate. In the final analysis, it is therefore necessary to be content with the vagaries of human judgment.

(a) The Reasonable Person Test (Test at Common Law)
• In determining appropriate degree of care, it is useful to have a standard against which to measure the conduct of the D. CL resorts to the REASONABLE CAERFUL PERSON IN THE CIRCUMSTANCES OF THE D when it is need of a normative standard of conduct. Thus, an objective standard – no consideration given to D’s thoughts or subjective awareness of the danger. This test excludes all individual characteristics in its determination of reasonable care. * flexible and reflects changing values in society

Arland v. Taylor (1955) Ont. C.A. *clearly defines the parameters of reasonable person test Facts: P injured in car accident. Jury held D has not breached the requisite SoC and held for the defendant. P appealed on the grounds the trial judge misdirected the jury on law (i.e. at trial, judge charged jury by saying, “I suggest you put yourself in the driver’s seat of his car.” Found to be an error, the standard of care for the jury to evaluate is the care taken “in the circumstances by a reasonable and prudent man”). It is improper for a juryman to judge the conduct of a person in given circumstances by considering, after the event, what he would or would not have done in the circumstances. Decision/Analysis: Judge did err, but appeal dismissed b/c would not have affected the finding.

• “The Standard of Care by which a jury is to judge the conduct of parties in a case of the kind under consideration is the care that would have been taken in the circumstances by a reasonable and prudent man…I shall not attempt to formulate a comprehensive defn of ‘a reasonable man’ who we speak so much of in negligence cases.

I simply say he is a mystical creature of the law who conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time…he is not an extraordinary or unusual creature; he is not superhuman…he is a person of normal intelligence who makes prudence a guide to his conduct.” Ratio: Our first consideration of the standard of care and discussion of a reasonable man. It is not appropriate for a judge/juror to evaluate the D’s conduct on the basis of what he/she would have done under the same circumstances.

(b) Factors Considered in Determining Breach of the Standard of Care

• When determining the SoC in a certain case, crts find it useful to review a number of factors the guide a reasonable person in the regulation of her conduct. The most important of theses is the concept of a REASONABLY FORESEEABLE RISK – the reasonable careful person avoids creating a foreseeable risk of injury to others

• When is it and when is it not acceptable to take a calculated risk? Judges consider, or direct a jury to consider, a number of factors in determining a breach in the SoC. The two most important factors are: i) probability of the injury

(ii) the likely severity of injury.
These two considerations are weighed against
(iii) the private and social costs that would have been associated with the accident prevention

(iv) the social utility of the D’s conduct.

(i) & (ii): Probability and Likely Severity of the Harm (thus magnitude of the risk)

Bolton v. Stone (1951) H.L. *The Probability of the Damage
Facts: the P was walking on a road adjacent to a cricket ground when she was struck and injured by a ball that had been driven off the ground (in 30 yrs, 6 balls had been hit there). P argues that, once a single ball is hit out of grounds, it was foreesable it may happen again and that someone may be injured, thus D was negligent to continue playing cricket in the grounds Issue: did the cricket club breach the SoC? (what was the magnitude of the risk involved?) Decision/Analysis: No negligence.

• Probability of the injury(to demand that the conduct of citizens be entirely free of all forseesable risk is impractical – crt drew distinction b/w foreseeable risks that are SUBSTANTIAL vs. foreesable risks that are HIGHLY UNLIKLEY. Reasonable ppl avoid creating material and substantial risks of foreseeable harm. They cleanse their conduct of unreasonable risks, NOT EVERY FORESEEABLE RISK. The D was not negligent to expose P to such a small risk of being hit

• “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…It is not the law that precautions must be taken against every peril that can be foreseen by the timorous…What I think a reasonable man ought to do, is to avoid a risk that is substantial” Ratio: D is not negligent if the damage to the P was not a reasonably foreseeable consequence of his conduct, thus the D need only take precautions against “reasonably foreseeable” risks. *The Probability of the Damage – the reasonable person takes greater care where there is a strong likelihood of damage occurring and takes lesser care where chance of damage is minimal.

Paris v. Stepney Borough Council (1951) H.L. *deals with severity – while the case above was decided on clear, logical lines, there are some cases, such as this one, where the decisions are made on less easily understood rationales. Facts: concerned a metal worker who only had one good eye. He was not given protective eyewear to protect himself from the foreseeable risk of steel splinters slying off the bolts. A metal chip flew up into the functioning eye, and the workman was blinded. Issues: Did employer breach the SoC?

Decision/Analysis: D are negligent. While there may have been no greater risk of injury to the P, there was a risk of greater injury to him, and a reasonable employer would have taken greater care for an employee who had already lose his sight in one eye. • DoC( Employer must take reasonable care with Employee’s safety • SoC( Provide appropriate safety equipment (BUT “appropriate” determined by nature of work, AND that he only has one eye, etc.) Thus, the Council owed a special duty to protect the claimant because he had already lost the sight of one eye. The test is as to the severity of the consequences if no action is taken. Since he was already partially blind, injury to the remaining eye would be more serious and so an additional duty was imposed on the employer Ratio: The Seriousness of the Threatened Harm – the reasonable person must also regulate conduct with reference to the severity of the threatened harm. This case illustrates the need to take greater care when the threatened harm is serious

(iii) Cost of Risk Avoidance *both of the below cases show that the plaintiff must prove that there was a reasonably practical precaution that the defendant failed to adopt, in relations to the cost of preventative measures Vaughan v. Halifax-Dartmouth Bridge Comm. (1961)

Facts: Painting of a bridge results on paint being splattered all over the cars/dockyard below Issues: Were all reasonable measures taken to prevent foreseeable harm to the foreseeable plaintiff? Decision/Analysis: Owner of bridge is negligence, because he breached the SoC. No preventative measures were taken (they could have warned people, which was not done, an inexpensive prevention method). Ratio: A D will fail to meet SoC if there was a practical precaution that was not adopted.

Law Estate v. Simice *cost of risk avoidance w/in medical forum Facts: Doctor did not do a CT scan on a person as a provincially mandated cost cutting measure. Husband dies. Doctor’s defence was that they felt constrained by the financial limitations of the medical system. Issue: Did the physician’s breach the SoC b/c they did not provide treatment b/c of cost considerations? Decision/Analysis: Doctors were held negligent. Given the severity of the risk (death), costs must be secondary. Ratio: Court argued that weighed against each other, the risk of going against BC medical system vs. life of patient is not high enough to not perform CT scan

(iv) Social Utility

• The Utility of the D’s conduct – also needs to be balanced against the magnitude of the risk – but keep in mind that this factor appears to be directly related to only a few cases, those which involve gov’tal services where the inevitable price of direct and necessary benefits to the public is an increased risk of injury to innocent persons.

Those in authority are permitted to expose the public to a degree of risk that would not be permitted by an ordinary citizen, BUT that does not mean they have carte blanche. o The utility of the D’s conduct has a general, persuasive influence in all negligence cases. The task of crts is to decides society’s current degree of risk tolerance by labeling risks as either reasonable (no liability) or unreasonable (liability).

Watt v. Herford County Council (1954)
Facts: P fireman injured due to improperly fitted jack on truck. Issues: Breach of SoC?

Decision/Analysis: Appeal by P dismissed – the utility of the defendant’s conduct was high as it was a service to the community. This decreased the standard of care owed. Defendant succeeds

• SoC( for the plaintiff the risk comes with the territory (firefighter). Because it was an emergency and the jack was needed to save lives, the risk of taking the jack was acceptable. The risk in sending the truck was less than the risk to life by not sending it at all. Ratio: have to balance the risk against the risk avoiding the risk – cost in human terms

Nt – Pristeman v. Colangelo (1959) – high speed police chase, officer not negligent b/c he was under affirmative duty to apprehend suspects and justified under s. 25(4) of the crim code – q. should innocent bystander by able to sue?

• Weighing the risk to others: foreesability is clear, in shooting of someone that is driving a car could result in a risky/dangerous situation balanced against benefit of apprehending the person (depn on type of crim – SoC for a police officer is to take reasonable steps)

• at the time of Pristeman ppl more willing to give cops lee-way – now meeting the SoC has become a more onerous requirement (same language used – but in order to meet it diff requirements)

(v) An Economic Analysis of the Standard of Care
• crts have not openly embraced, but it is likely that this theory does to a certain degree influence some judicial thinking. This view entails that the dominant purpose of negligence law is not compensation but accident prevention. Thus, the SoC should be set to reflect the economically efficient level of accident prevention. Consequently, if the cost of precautionary measures is less than the likelihood of the injury multiplied by the magnitude of the loss, it is negligent to fail to take precautionary measures. BUT IF, on the other hand, the cost of prevention is more than the likelihood of the injury multiplied by the magnitude of the loss, it is not justifiable, economically, the take those measures, and the failure to take them is deemed NOT negligent.

• most Canadian judges are reluctant to reduce the SoC to an economic cost-benefit analysis, for the factors in the equation are difficult to quantity.

U.S. v. Carroll Towing Co. (1947) U.S. *championing cost-benefit approach Facts: Defendant’s barge broke lose and damaged some other barges.  The bargee was away from the barge at the time the barge broke lose. Issue: Was the owner of the barge breach the SoC by not being there? Decision/Analysis: Barges break from time to time and it cannot be ruled that every time a barge breaks, the owner is liable.  So how is liability determined?

The court came out with an algebraic equation.  If P (probability of barge breaking away) x L (the gravity of resulting injury) > B (the burden of adequate precautions) = liability exists.  There are social interests for the bargee to have some freedom of movement.  But in the current case, the bargee was away from the barge for about 24 hours.  His fabricated story shows that he has no legitimate excuse for his absence.  So in the current case, PL > B.  Therefore, the court held “that it was a fair requirement that the owner of the barge, should have a bargee abroad unless he had some excuse for his absence, during the working hours of daylight.” Ratio: D found to have breached the SoC, b/c failed to meet the burden of adequate precautions, based on a cost-benefit analysis approach.

Obiter: The “Hand” approach attempts an algebraic formulation of breach of standard of care, in light of a specific activity in specific conditions. Elements of the Calculated Risk:

• probability of risk occurring (in this case, will barge break away)

• severity of injury

• burden of adequate precautions
*prob is: it is not straight cost benefit analysis – negligence cannot be reduced to purely economic equation. But nonetheless, it does help to break down how reasonable ppl should assist what they should do in their actions

(c) Special Standards of Care
• There are certain situations where the standard of the reasonably careful person is not applied to the D, which will have the effect of either lowering or elevating the SoC.

(i) Mental Disability
• Canadian law has traditionally resolved this conflict in favour of mentally impaired defendants, since considerations of fairness and justice suggest that these ppl should be free of liability, b/c it doesn’t seem right to punish those who are incapable of acting with reasonable care,

Fiala v. Cechmanek (2001) Alta. C.A.
Facts: the D, a mentally disabled man, attacked a driver while suffering a severe manic episode. In the course of the attack, the driver unintentionally hit the gas pedal, and hit the plaintiff’s vehicle. Issues: Should the D be treated with the normal standard of care? Decision/Analysis: D not negligent

• D can avoid liability b/c (1) he did not have any meaningful control over or actions, or (2) appreciate it, in terms of the standard of care. The D was robbed of his capacity to understand or appreciate his SoC by the sudden onset of a serious mental illness and he thus could not be found liable in negligence (crt mentions that tort law needs to be a corrective system of justice that should not be distorted by a robust pursuit of compensatory goals). **tension b/w wanting to reward compensation and the requirement of fault based on liability **Nt – it is well established that the physically disabled are required to meet only the standard of care of a reasonable person with a similar disability

(ii) Children
• They do not have same K, experience, or wisdom as adults to foresee danger and act accordingly. Crts have been sensitive to the diminished capacity of children to take care and have developed a special SoC applicable to them. Canadian crts have adopted a mixed objective/subjective test of liability. The standard of care applicable to children was that of a child of similar age, intelligence and experience of the defendant (the last 2 factors being subjective).

Joyal v. Barsby (1965) C.A.
Facts: 6 yr old girl fails to observe the D’s oncoming motor vehicle when crossing a busy rural highway, and is seriously injured. Issue: Same SoC applied to children?
Decision/Analysis: Child is not negligent.

• Issue at appeal was whether the child was contributory neg’t in stepping onto busy highway? Kid is held to standard of what a “normal reasonable” 6 year old kid would do. • Emphasized that she was not of above-average intelligence, she was not a city child who would have had more experience with motor vehicle traffic, and she was distracted by a fog-horn sounded by a large truck that had passed a few seconds earlier in the opposite direction from where she was hit. She acted no differently from other children of her age, intelligence and experience.

• Dissent: The dissenting judge was influence by the facts that she had been carefully instructed by her parents on how to cross the highway, she had successfully crossed it on previous occasions, and she lived close to it. Dissent would allocate 40% liability onto the child Ratio: SoC of child is that of a child of like age, intelligence, and experience, however, much heed is paid to peculiarities of childs experience  Obiter: Although partners and guardians and others who supervise children are not held vicariously liable when a child commits a tort, they are under a personal duty to take reasonable care to supervise and control their minor children and they may be liable for loss caused by a failure to discharge an obligation. There is however, renewed interest in the idea of vicarious liability for parents.

It has been promoted by a rise in juvenile gang activity and by an increase in juvenile crime, such as car theft, shoplifting, and the defacement of private and public property with graffiti. It is argued by some the vicarious liability may provide an incentive for parents to exercise more control and supervision over their children. Some provinces have taken a step in that direction. They can be held liable if they have carelessly failed to monitor or control the child’s conduct, legislation.

Parental Responsibility Act
It should be noted that parents are generally not vicariously liable for the torts of the children. Rather, they can be held liable only if they were persaonally negligent in supervising or controlling their children. Proof by the parents that they exercised reasonable supervision over their child and that reasonable efforts were made in good faith to discourage child from the kind of activity that gave rise to the property loss amounts to a complete defence. The crts have defined the requisite SoC in terms of a “reasonable parent of ordinary prudence”. Parents can be held liable if they carelessly failed to monitor or control the child’s conduct.

This is true under the PRA which was been introduced in Ont, Man, and B.C. c. 4 imposes civil liability for the intentional destruction, damage or taking of property by their children up to a max of $7,500. A P would have to prove that a child under the age of 18 caused property damage and that the D is the child’s guardian. The burden then shifts to the D to prove either that they reasonably supervised the child or that the damage cause was unintentional. The D is not merely liable b/c of their relationship to the child. Instead, liability is imposed b/c of the D’s own failure to provide reasonable supervision of the child.

**Vicarious liability – regardless of your ignorance, depending on your relationship with someone else, you may be held liable i.e. Employer held liable for employee’s negligent behaviour. Tying this into Joyal, today one may say this would not be vicarious liability, but more so direct liability i.e. LaPlante – son drove car on icy roads at highway speed w/new license, and father was liable.

The crt held that a reasonable parent of ordinary prudence would not have let the son drive in those conditions. **If an older child is undertaking an activity normally carried out by adults, it is likely in this case that the adult SoC will be applied – the reason for this is that mbrs of the public reasonably expect it to be occurring under the control of an adult and they adjust their conduct accordingly.

(iii) Superior skill and knowledge
• A higher SoC is applied to those persons who represent themselves as having special skill and K that allow them to perform tasks that are normally beyond the capacity of the ordinary person. An elevated SoC applied not only to mbrs of the professions but also to business, commercial, and trades ppl. The SoC is that of the reasonably prudent and competent mbr of the particular profession or vocation to which the D belongs.

• Many of the rules relating to prof liability have arisen from malpractice litigation b/w physicians and their patients. Crts have been careful not to set unrealistically high standards for physicians. The standard is that of reasonable care and judges are sensitive to the facts that medical practice carries no guarantee of success.

Mistakes are made, inherent risks involved and treatments do fail. Crts depend on highly qualified expert witnessses to assist the trier-of-fact in understanding technical matters and in identifying the accepted and approved practice of the profession.

White v. Turner (1981) Ont. C.A. *standard of care in professionals, more specifically in this case, physicians **Courts are developing a standard of special modified standards of care for professionals as well as most skilled trades and occupations Facts: A breast reduction operation goes wrong, breasts are misshapen, and not enough reduced. Doctor did operation in 90 minutes as opposed to the standard 4 hours. Issue: Did doc breach the SoC?

Decision/Analysis: Dr. Turner held negligent in performing the surgery • General rule for SoC of physicians( degree of care shown by a reasonable prudent practitioner acting under like circumstances, and apply it to the particular circumstances of the case. To determine this is this case, crts relied on expert testimony to determine standard of care in this case. Expert testimony that this surgery was performed too quickly Ratio: Using the professional standard, or custom, as given by other doctors, the doctor was held to not have fully met the standard of care.

The profession’s peers essentially set the standard. **Nt – what type of standard of care would be held for volunteers? They would not be required to meet standard of care, but trained properly and know when they are out of their depth **Nt – what type of standard of care who holds themselves as a person of expertise? They can be held to a standard of care i.e. a marriage counselor (by holding themselves out, that can be seen as a representation that you have expertise in this area)

(d) The Role of Customary Practice

• It is not uncommon for a D who is a mbr of a business, trade, or profession to seek to avoid a finding of negligence on ground that she acted in accordance with a well-established custom of the group she belongs. There are good reasons to consider such evidence, b/c it provides a defined course of conduct that reflects the accumulated wisdom of those involved in the activity. • Proof of compliance with approved practice is particularly influential in medical malpractice cases. Crt pay great attn to the practice and custom of the medical profession.

Ter Nauzen v. Korn (1995) S.C.C.
Facts: P Patient contracts HIV from Artificial Insemination procedure performed before screening for AIDS began. Issues:Whether physician could be found to have breach the SoC notwithstanding conformity with standard Medical practice?

Decision/Analysis: Doctor not negligent
• SoC met(the defendant followed standard practices (in issuing warnings and in screening donors) at the time of the injury (i.e. 1985, when HIV was new, as opposed to year of trial). o Courts must not with the benefit of hindsight judge harshly doctors who acted in accordance with the prevailing standard of professional knowledge. Ratio: If a practice involves “difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury,” it cannot be held negligent. However, if a standard practice “fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact,” the jury may find the practice negligent

Girard v. General Hospital of Port Arthur *The ambiguity to the Ter Neuzen exception plays out here Facts: During the course of a neurological examination of the P, the D physician performed a gait assessment. It involved following the P from behind while she walked across the examination room. The P, who had experience dizziness and a loss of balance for some weeks, fell before the D could catch her. D argued that the test had been performed in accordance with approved standard and practice. The trial judge held that despite normal custom, D was negligent, for there was an obvious risk accord to a reasonable persona and there should have been another present, and doctor was held to be negligent. Issue: Is the doctor negligent, despite argument of customary defence? Decision/Analysis: Doctor not negligent.

• The expert evidence, accepted by the trial judge, was that the D’s actions were consistent with approved practice and that there was no reason to suspect the P would fall. It was thus not open to the crt to reject that prof opinion, even though having a nurse present might be considered to be a reasonable precaution by a lay observer. Ratio: The exception mentioned in Ter Nuezen against the general rule regarding customary practice defence for professionals, where the standard practice is fraught with obvious risks that any layperson could understand, a finding of negligence may be made, is seen to be a difficult issue and it dealt with in this case.


• Causation is generally regarded as a factual issue: even if P caused loss, no liability if too tenuous or remote to justify imposition of liability as a matter of policy. • The burden is on the P to prove that the D’s negligence was the cause-in-fact, on a BoP. *do not confuse this with remoteness of damage, which is more concerned with excusing liability on the ground of fairness

(a) The But-For Test (Standard Test of Factual Causation)
• The standard test to determine cause-in-fact is the “but-for” test. One must ask the q, “would the P’s damage have occurred but-for the D’s negligence? If the answer is No, the D’s negligence is a cause-in-fact of the damage. If the answer is yes, indicating that the damage would have occurred whether or not the D was negligent, his negligence is not a cause-in-fact.

Barnett v. Chelsea & Kensington Hospital Management Committee (1969) Facts: man poised by tea, widow holding hospital responsible b/c sent him home w/out sufficient testing. Issue: Would the man have died but-for the hospital’s negligence? Decision/Analysis: In favour of the D. The “but-for” test is applied, and the plaintiff’s death would have happened anyways, even if there was no negligence. Thus, the “but-for” test could not be met Ratio: Cause-in-fact must be proven by the P on a BoP. Had the Doctor not been negligent and admitted the man to hospital, the man would still have died, thus the doctor’s negligence did not cause death.

Qualcast (Wolverhampton) Ltd. v. Haynes (1959) H.L.
Facts: injured worker did not wear protection spats, and had not asked to use them, but the company had not ordered him to wear them. When the worked went back to work, he continued to not use the spats. Decision: H.L. found the defendant had not been careless. In any event, the plaintiff’s claim would have failed on causation

Richard v. C.N.R.
Facts: car drives off ferry after someone yells “we’re here!”, driver, despite warnings, backed into the Gulf of St. Lawrence. P charged that ferry
was negligent b/c of prematurely untying the nylon rope. Decision/Analysis: The court concluded that the sole direct proximate and effective cause was the rash behaviour of the plaintiff, and the ferry was not the cause-in-fact.

(i) The Material Contribution Test
• The but-for test has proven to be an effective one in determining the cause-in-fact but there are circumstances where it breaks down and leads to clear injustice. This has arisen for e.g. in situations of multiple sufficient causes (i.e. 2 D’s negligently light a fire, each of which is sufficient, independently, to cause the P’s loss – if you applied the but-for test here the unjust end result would be that both would be exonertated b/c the loss would still have occurred if either one, but not both, had not been careless – clearly in fairness both should be responsible).

• For that reason, Canadian crts have held that in some instances, the issue of causation should be resolved on the basis of other tests. One such alternative is the “material contribution test” and is a permissible alternative to the but-for test would lead to unfair result (In actuality, while there may not seem an advtnage of using one over the other, the courts use the vagueness of the new test to their advtange to lower the threshold in situations where they thing it is fair to do so).

• Keep in mind though, the contribution must still be substantial and significant to qualify as a cause-in-fact, thus must be above de minimis standard

Walker Estate v. York-Finch General Hospital (2001) SCC
Facts: P contracted HIV, alleging negligence on the part of the Canadian Red Cross Society (CRCS) in its donor-screening method, for failing to warn homosexual men with multiple partners against giving blood. P’s claim dismissed at trial due to inability to prove causation that donor would have stopped donating blood had he been given warnings Issues:Whether providing a warning would have prevented the person whose blood was infected from making the donation, making the negligence the cause-in-fact? Decision/Analysis: CRCS was negligent, causation established.

• “the question of donor screening should not be whether the CRCS’s conduct was a necessary condition for P’s injuries using the “but-for” test, but whether that conduct was a sufficient condition” • because multiple causes may bring about a single harm, we look to see if the D’s behavior “materially contributed” to the loss. A contributing factor is material if it falls outside the de minimis range (Athey v. Leonati-back injury).

• argued that ‘but for’ test was leaving out legitimacy of P claims, so imposed the new test – whether negligence “materially contributed” to occurrence (material anything outside the de minimis range) o In cases of negligent donor screening, it may be difficult or impossible to prove hypothetically what the donor would have done had he or she been properly screened by the CRCS.  In such cases, therefore, the question should not be whether the CRCS’s conduct was a necessary condition for the plaintiffs’ injuries using the “but-for” test, but whether that conduct was a sufficient condition.

• found that “proper screening measures would, more likely than not, have deterred Robert M. [the donor] from donating.” Ratio: While the S.C.C. recognizes the but-for test was adequate for the task of establishing cause in this cause, it favored, in these circumstances, the use of the material contribution test. This more lenient test was justified on the grounds that it could be difficult to prove what the donor would have done if the proper warnings were given, possibly causing legitimated P’s to go uncompensated. Ratio: Material contribution test outlined where multiple causes bring about a single harm; negligence found on “but-for”:

The oweness is on P, but has to show negligently ‘but for’ test. Ratio: The proper test for causation in negligent donor screening is whether is whether D’s negligence materially contributed to P’s harm. *The problem with this is that we never get an explanation of when the materially contribution test is applicable over the but-for test. Walker leaves us with not much guidance about when it is appropriate to use the materially contribution test can be used over the but-for test, nor the scope of the new test.

Cotrelle v. Gerrard C.A. *refers to materially contribution in C.A. decision, and how it DOES NOT apply Facts: woman had diabetes and developed sore on her foot. Consults physician, who tells her to make an appt with a specialist, he doesn’t follow up and limb has to be amputated. Decision/Analysis: Crt goes on to talk about the relevance of the material contribution test – and that it does not apply to this type of case, where you actually know what the factual cause of the injury was Ratio:
essentially, this is a case of the simple, old “but-for” test, for the cause was known – no uncertainty as to why she suffered to loss of her leg.

(ii) Materially Increased Risk – Inference of Causation

• In the past few decades there has been some dissatisfaction with the conventional causation rules and the BoP. This has arisen most often with respect to medical malpractice cases and claims arising out of testing, manufacture and distribution of toxic products and compounds that are suspected of causing cancer and other illnesses. In this cases, proof of causation presents special difficulties for P’s and some crts have proposed modifications of the conventional causation rules to ease their BoP. The most provocative decision of this kind is seen in McGee. • In some cases, tech can conclusively prove that a particular injury was caused by a particular event. But in other instances, the situation is more complex, and new tech may reel that a particular event materially increased the risk of injury and was a possible cause of the P’s loss.

McGee v. National Coal Board (1972) H.L. *dealing with harshness of but-for, the majority effectively redefined causation and how it was to be established Facts: plaintiff suffered dermatitis from dusty workplace. The only negligence was failing to provide worked with adequate washing facilities. The medical evidence could not determine if the delay in removing the dust caused the dermatitis; all that could be said was that the exposure to dust creates a risk of dermatitis. Decision/Analysis: Maj of H.L. held that, in these circumstances, a MATERIAL INCREASE IN THE RISK of disease may be equated with a MATERIAL CONTRIBUTION TO THE DISEASE, and the D’s negligence was a cause of the dermatitis.

Thus, under this view, proof by the P that the D was negligent, was sufficient to reverse the BoP of causation. To escape liability, the D must then prove that his negligence was not a cause of the loss. Ratio: that if the defendant’s negligent act significantly increased the risk of injury, then the defendant would be deemed to be the causer. However the minority view would also hold that the burden of proof should then shift from the plaintiff to the defendant (if good policy reasons to do so) *Canadian courts were at first quite receptive to this and applied it in a number of cases, but the issue was not addressed by the S.C.C. until Snell v. Farrell.

Ironically, by that time McGee had fallen into disfavour after McGee in England it retreats from this shift in Wilshire v. Essex Area Health Authority (1988) H.L. The english crts say it is not enough that risk was increased. Baby born prematurely, needed oxygen, baby ends up impaired vision. One cause could have been too much oxygen but could have also been many others, such as the fact that he was born prematurely. Crts argued proving something as a possible cause of injury in not enough for hospital to be negligent in this case. In this case, the H.L. essentially “reinterpreted” McGee in a way that essentially overruled it.

Snell v. Farrell (1990) S.C.C. *S.C.C. addressed the shift in this case, 18 yrs after McGee Facts: Dr. D performed cataract operation, continued operation despite blood in eye, resulted in blindness (optic nerve had atrophied). Damage to optic nerve could have occurred naturally, or as a result of operation. At the trial, the medical experts were unable to give a firm opinion that the nerve damage was caused by a continuation of the surgery.

It may have been caused form natural causes, including the P’s high blood pressure or her diabetes. The P argued that the D’s negligent act had certainly increase the risk of damage to the optic nerve and the loss of sight was w/in the scope of the risk. The lower crts found for the P on the basis of McGee’s materially increase of risk test. The trial judge held that physician was negligent when the bleeding occurred during the operation and continued anyways and applied the shift of burden of proof on this case. Crt of Appeal affirmed this application of precedent to the law. Issues: What is the proper cause-in-fact test to be used?

Decision/Analysis: The S.C.C. upheld that decision but DID NOT adopt the McGee approach. • The S.C.C. considers material contribution to risk as being sufficient, and does not support the shifting of the burden of proof. The Policy reasons behind the decision: o The tradition rules had not prevented P’s with valid claims from proving their cases o The adoption of McGee’s increased risk test and the shift of burden of proof would create the risk that D’s might be held liable that they in fact had not caused o It might also lead to an increase in medical liability and increased pressure on insurance systems

• The court did emphasize however that the tradition causation rules should not be applied in a strict and rigid manner; it called for a flexible, pragmatic and common-sense approach. It also noted that where facts lie particularly w/in the K of the D, little affirmative evidence of cause-in-fact is required on the P and, in the abscnece of evidence to the contrary, it is fair to make an inference of cause-in-fact. It is not appropriate however, to reverse the burden of proof. The ultimate burden always remains on the P.

• SCC will not depart with the traditional “but-for” test in this situation (at least formally). D should not escape b/c P can’t prove causation. The “but for” test stands, however, the strategic burden then shifts in instances when the other party is in a better position to have the information at their disposal (i.e. medical cases), once the plaintiff establishes a prima facie case. The legal burden remains with the plaintiff who must only show a reasonable inference that the defendant caused the injury—balance of probabilities. Ratio: The court’s resort to the conventional causation rules and the traditional burden of proof, while relaxing the but-for test in medical forum to a reasonable inference. Ratio: While the legal burden remains with P, in the absence of evidence to the contrary adduced by D, inference of causation may be drawn, though positive or scientific proof of causation has not been adduced. Policy: There is a flexible approach to P’s burden of proof.

The legal burden should rest with P, but is enough that D materially increased the risk as opposed to on b of p. He purports to use but for test. McGee is rejected in word, but not in spirit. SCC claims that causation is more ‘robust and pragmatic’ to prevent P’s from being unfairly denied recovery because of difficulty in proving causation on b of p. This lowers P’s burden of proof- take into account imbalance in recognition of proof (no need for scientific info) **Scientific determination of causation is not necessary; need only show causation on the balance of probabilities – modifying HL McGhee decision **When ‘but for’ isn’t fair in Canada they keep the but for and they loosen the interpretation, all you have to prove is the D materially increased the risk. **With Snell there were 2 possible causes and either one could have been contributing, whereas with Walker it was not an either/or, but a case where both the donor and the red cross contributed to the harm.

(b) Multiple Causes
• The court recognizes that causation principles are not immutable and have to be open to modification to reflect societal needs and justice. The Court has recognized certain exceptions in cases where there are a number of negligent persons, but P is unable to establish which person is negligent.

1. Action Indivisible or Divisible?
2. Independent or joint tortfeasors?
3. Measure of loss caused? (always keep in mind P’s original position – tortfeasor takes victim as finds him) **where there is an action in which there are 2 separate tortfeasors, the plaintiff may have a claim against each tortfeasor independently **where there is an action in which there is joint resp, action would be together

(i) Independent Tortfeasors
• With independent tortfeasors, several factors combine to cause the plaintiff’s loss concurrently, but each tortfeasor acts independently, and are liable for their causal role • Each factor is individually necessary, without it, the loss would not have occurred, however, no factor is individually sufficient(but-for the presence of the other factors, the loss would not have occurred. • Is the action divisible or indivisible?

o Divisible Action/Several Liabiliy(If there are distinct losses that can be attributed to a distinct tortfeasor, then the plaintiff has action against EACH tortfeasor o Indivisible Action/Joint and Several Liability(If there are independent tortfeasors that caused one single individual harm, even though the tortfeasors are independent, they are each jointly and severely resp for ALL of the plaintiff’s loss.

▪ when two or more are held jointly and severally liable as independent tortfeasors each defendant acts independently of the others. While all the defendants are held jointly and severally liable for the losses that are caused by the combined effects of their careless acts or omission, each independent tortfeasor is held liable because of the causal role that his or her carelessness played

▪ when it is joint and several liability, this means that all the D tortfeasors are liable for the full amount of the damages awarded and each D is individually resp for that amount. The P may therefore, opt to fully execute her judgment against any one the D’s (meant to maximize the chances of P getting paid). Full satisfaction (payment) by one D of a settlement discharges the liability of all other Ds to the P.

Nowlan v. Brunswick Const. Ltee (1972) *concurrent independent tortfeasors with an indivisble injury (shaudy design and poor ventilation) Facts: Architect does not properly design a house and it has no ventilation. A contractor improperly installs a roof that leaks and creates water damage and rot. The roof falls in years later. Roof would not rot if architect’s design had been proper. Roof would not rot if contractor had the roof installed properly. Issue: Since the contractor is a material contributor, can he be held liable for the entire damage? Decision: Analysis: P should have judgment against the D for amount of $36,068.

• Here we have concurrent torts – shaudy design and poor ventilation, where both indpendent tortfeasors contributed to the same damage, and the action is indivisible. o B/c indivisible action, liability becomes joint and several among independent tortfeasors o The contractor is a concurrent wrongdoer and the fact that the damage might not have occurred but-for the poor design of the building does not excuse him from the liability arising out of his poor workmanship and inadequate material supplied by him, “where there are concurrent torts, both contributing to the same damage, whether or not the damage would have occurred in the absence of either cause, the liability is a joint and several liability and either party causing or contributing to the damage is liable for the whole damage to the person aggrieved.”

• Harm was considered indivisible, held severally liable to the owners of the building and jointly liable to each other Ratio: An independent tortfeasor is jointly and separately liable for the injury brought about by all tortfeasors if the injury is indivisible (EVEN IF they did not directly cause the harm)

(ii) Joint Tortfeasors (concerted action)

• Finding joint tortfeasors stems from the legal relationship between them. There are four categories: 1. one who instigates or encourages another to commit a tort; 2. employer resp for employee;

3. an agent acts in accordance with authority of a principle; and 4. guilt by participation (not by association)

• When two or more defendants are held jointly and severally liable as joint tortfeasors the liability of the joint tortfeasors stems from the legal relationship between them. Because of the legal link b/w them, all joining tortfeasors are held jointly and severally liable for all of the plaintiff’s injuries, even if a particular joint tortfeasor did not cause or materially contribute to the plaintiff’s injuries. *Cook v. Lewis – plaintiff is hit by one of two defendants while hunting, and both were found negligent – NOT joint tortfeasors accord to Crt

(iii) Independently Sufficient Causal Factors
• This is a more difficult situation when the plaintiff is subjected to several causal factors, each of which individually is sufficient to cause a certain injury

Dillon v. Twin State Case and Elec. Co (1932) U.S. *case of alternative causes Facts: A boy plays on a bridge. He falls and grabs electric wires on the way down. He is electrocuted by a chance charge before he hits the ground. It happened during the day – no charge on wire except of chance occasions. Decision/Analysis: Crt held that the D’s only liability was exposing him to the risk of being exposed to the electric current running through the wire (liability overridden by the fall)

• Alternative causes of the damages assessed. But-for him touching the wire, he either did not have long to live or would be severely injured. The boy would have died anyway as it was his fall that caused his death, not grabbing the wires.

Penner v. Mitchell (1978) *additional causes can be simultaneous or consecutive Facts: This woman has been tortiuously injured and unable to work for 13 months, but for 3 months she couldn’t work for totally unrelated heart conditions Issue: Should the 3 months be taken into account in assessing damages for loss of income? Decision/Analysis: the 13 months is reduced by the non-tortious event of 3 month period

• Contingencies that should be taken into account in assessing prospective loss of income should only include those that occur in non-culpable circumstances, and to not do so would result in overcompensation

• uses Baker and departs (in Baker it is important to understand what the damages are being rewarded for)

• “If the later injury suffered before the date of trial either reduces the disabilities from the injury for which the defendant is liable, or shortens the period during which they will be suffered by the plaintiff, then the defendant will have to pay the damages. But if the later injuries merely become a concurrent cause of the disabilities cause by the injury inflicted by the defendant, the n in my view they cannot diminish the damages” Ratio: Tortfeasor takes victim as finds him, sowhen crts are assessing damages awarded, it is a general principle that crts will factor in “contingencies of life”.

Thus, plaintiff’s loss was determined by what the plaintiff’s normal existence would be, but also the contingencies of her life

(iv) Independently Insufficient Causal Factors
Athey v. Leoni (1996) S.C.C. *tortious factor combined with non-tortious factor Facts: P suffers disc herniation while exercising; pre-existing susceptibility to back problems which was aggravated by 2 car accidents caused by the negligence of the 2 Ds. P proved on a balance of probabilities that injuries suffered contributed to her injury. TJ and BCCA: Ds liable for their degree of causation (25% – 75% denied b/c of pre-existing back condition). Issue: If D’s negligence exacerbated an existing condition, is he fully liable? Decision/Analysis: SCC: allows appeal, 2 Ds jointly and severally liable for the entire loss. P entitled to recover 100% of his damages.

▪ If D’s conduct is the cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of D’s liability, as D must take P as he finds him. 2 accidents were material contributions, and cumulatively were a necessary cause. SCC found a single, indivisible injury and multiple tortfeasors.

• Long established that presence of other non-tortious contributing causes does not reduce extent of defendant’s liability o Thin skull rule – tortfeasor liable for P’s injuries even if injuries are unexpectedly severe owing to a pre-existing
condition i.e. take him as you find him o crt argues this is a thin skull case (tortfeasor takes the victim as he finds him) – NOT crumbling skull, as counsel for the defendant is trying to argue – want to restore to original position but-for the accident

▪ no finding that disc herniation would have occurred anyways, exercise accident was not a cause, an effect

▪ since ‘but-for’ argument was proved, not necessary to go to MCI (but 25% liability issued by judge suggests D’s contribution outside de minimis)

• But-for test applied in this instance(P has to prove on balance of probabilities that defendant caused injury, and the test is the but-for test ***but this test is not always workable – and in those instances it will be held to be liable if the defendant materially contributed to establish causation Ratio: If a defendant is A cause to a single, indivisible injury (along with a non-tortious cause), or has made a necessary contribution to that injury, then the defendant is fully liable for the damages flowing from the injury.

(a) The Burden of Proof in a Negligence Act
• The legal burden (typically) remains on the plaintiff—he must prove all the elements of a negligence action on a BoP. The evidentiary burden however, may shift back and forth between the P/D. It pertains to the practical desirability of adducing evidence in support of one’s own position. Generally, whomever raises an issue and makes an allegation, is required to prove it. The plaintiff must also must establish a prima facie case, or run the risk of the declaration of a non-suit. The defendant will likely lose if he does not provide evidence to rebut the prima facie case

• It is important to distinguish b/w the legal and evidentiary burdens of proof: o The Legal Burden: in a civil action is the burden of proving an issue on the balance of probabilities. After both sides have been heard, the party who bears the legal burden will lose the issue unless she has convinced the judge or jury to this requisite degree of certainty. Although the balance of probabilities test is clearly less onerous than the crim standard, it is difficult to define precisely.

The plaintiff usually bears the legal burden of proving all of the elements of a negligence action, and the defendant has the legal burden of providing a defence

o The Evidentiary Burden: the legal burden generally remains on the same party throughout a trial. In contrast, the evidentiary burden may shift back and forth b/w parties as evidence is introduced during the course of a trial – burden can shift and becomes a tactical method depending on the evidence provided. The evidentiary burden pertains to the practical desirability of adducing evidence in support of one’s position, and its placement is determined at any particular time by the cumulative weight of the evidence that has been presented.

Wakelin v. London & South Western Ry.Co. (1886) H.L. *general rule of burden of proof in a negligence action Facts: Plaintiff (widow of deceased) claimed that SWR “negligently and unskillfully” drove a train across a foot path, which killed her husband who was hit by the train. (nt – he died w/out a will) Issue: Is the D negligent?

Decision/Analysis: D not liable. In this case, there is simply no evidence that assigns the negligence onto the defendant. Jury verdict for the plaintiff, but is set aside, b/c plaintiff failed to meet the burden of proof – it was unreasonable for jury to conclude that more probably than not man died b/c of railways negligence – only went so far to prove is was POSSIBLY a cause, but not enough, has to be PROBABLE. Ratio: It is incumbent upon the plaintiff to establish that the defendant was negligent by act or omission. If neither party can place the negligence, the plaintiff must fail, for it is his burden to prove it so.

(b) Exceptions to the General Principles Governing the BoP

statutes can alter common law rules

i) directly caused injury
ii) multiple negligent defendants

(i) Statues and Shifting the BoP (Highway traffic act; parent responsibility act)

Highway Traffic Act – the current reverse onus provision s. 193. Onus of disproving negligence s. 193.  (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.  Application

      (2)  This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.  **highway includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area b/w the lateral property lines thereof; motor vehicle includes an automobile, motorcycle, motor assisted bike unless otherwise indicated in this act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include streetcar, anything running on rails, motorized snow vehicle, traction engine, farm tractor, or road building machine

(MacDonald v. Woodward (1974) *highway traffic act statue shifting BoP Facts: The plaintiff, service station provider, was injured by the defendant’s car on the side of the highway. Issues: whether the Highway Traffic Act applied, thus causing a reverse burden of proof? Decision/Analysis: D losses, b/c could not discharge the BoP

• as per the HTA(owner or driver is prima facie liable for damage caused by his motor vehicle unless he satisfied the Court on a preponderance of evidence that he was not in fact negligent

• P need only show that the collision, and not the conduct of the driver, was the cause of the damage Ratio: HTA shifts the onus of proof with situation of driver on highway – plaintiff has minimum basis has to prove that there has been damage to someone on a highway, THEN IT SHIFTS and defendant has to prove that he was NOT negligent

Parental Responsibility Act 2000 *another e.g. of statue shifting the BoP The parent who is defendant has onus put on them – so they must satisfy the crt that they were providing satisfactory supervision and show that they were deterring bad behaviour generally Parents’ liability

2.  (1) Where a child takes, damages or destroys property, an owner or a person entitled to possession of the property may bring an action in the Small Claims Court against a parent of the child to recover damages, not in excess of the monetary jurisdiction of the Small Claims Court, a. for loss of or damage to the property suffered as a result of the activity of the child; and b. for economic loss suffered as a consequence of that loss of or damage to property.

(2) The parent is liable for the damages unless the parent satisfies the court thayt a. he or she was exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage and made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage; or b. the activity that caused the loss or damage was not intentional.

(3)  For the purposes of clause (2) (a), in determining whether a parent exercised reasonable supervision over a child or made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage, the court may consider, the age of the child; the prior conduct of the child; the potential danger of the activity; the physical or mental capacity of the child; any psychological or other medical disorders of the child; whether the child was under the direct supervision of the parent at the time when the child was engaged in the activity; if the child was not under the direct supervision of the parent when the child engaged in the activity, whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the child; whether the parent has sought to improve his or her parenting skills by attending parenting courses or otherwise; whether the parent has sought professional assistance for the child designed to discourage activity of the kind that resulted in the loss or damage; and any other matter that the court considers relevant.  **“child” means a person who is under the age of 18 years; (“enfant”)

(Shannon v. T.W. (2002) O.J.
• given the boys age, it was reasonable to leave the older boy (16) in care of younger son (who stole some jewelry from neighbour) • even with the positive obligation under s. 2 of Parent Resp. act, the parents are still not negligent in this case, they presenting evidence that they were acting as reasonable parents.

(ii) Directly Caused Injury: Unintended Trespass
• Burden of proof shifts to D – it is up to D to prove both absence of intention and absence of negligence (both intentional)

Dahlburg v. Naydiuk (1969) Man. C.A. *D has to disprove trespass in land AND trespass in person Facts: D shot at deer, missed and hit P working on his farm
Issue: Plaintiff could rely on either trespass or tort law.
Decision/Analysis: Defendant fails, could not justify the trespass

• If P relies on tort, the P must prove the negligence.

• If P relies on trespass (non-intentional), the burden is on the defendant to discharge, and then the Hunter must show that he did not intend to cause the harm, and that he was not negligent in order to win this case.

• Found to be negligent because he fired in the direction of farm buildings, and failed to obtain permission from P before hunting his land or firing across his land

Non-Marine Underwriters (2000) S.C.C. *an intentional tort – the trespass to person – burden shifts to the defendant (same as trespass to land)

• burden of proof to establish touching took place, then shifts to defendant

• reversal of burden on proof is what maj says is appropriate once the initial assault has taken place

• D has to prove (1) consent; or (2) reasonable person would believe he had consent Ratio: established that there is a shifting of onus where harm is intentionally caused. P has to prove direct application of force resulting in offensive contact with body. The D then has the burden of proving that the offensive contact was neither intentional nor negligent.

(iii) Multiple Negligent Defendants
Cook v. Lewis (1951) S.C.C. *BoP is shifted b/c of the crts dev and application of common law in circumstances such that the P cannot prove causation with 2 diff negligent defendants Facts: P hit in face by bird-shot, but unable to tell between 2 shooters who shot in same direction which one hit Lewis Issue: Who is liable when one of two D’s has been negligent? Decision/Analysis: Trial Jury said plaintiff loss, but CA and SCC find that a perverse finding. P was injured by one of two parties, where both parties were negligent, plaintiff’s difficulty to prove who shot him, (in this case of being difficult to disprove the causal link, onus shifts). Both are held liable.

• In this instance, it is difficult to prove the negligence of the defendant, as it cannot be attached certainly to either • Then, the wrongdoer has effectively destroyed the possibility of being identified due to confusing the environmental conditions

• The burden can be shifted in these circumstances to both of the hunters to show that they were not negligent. Each hunter breached the duty of care owed to the victim. Ratio: An innocent P should not bear burden in the case of 2 negligent D’s and impossible to prove which one is directly responsible for injury.

(c) Re Ipsa Loquitur (aka circumstantial evidence)

• The BoP with respect to negligence is sometimes expressed using direct evidence. But sometimes, however, there is not direct evidence of negligence, and in those cases, the P must rely on circumstantial evidence they may support an inference or concl that the D was negligent.

• The use of circumstantial evidence with respect o the breach of SoC was, traditionally, controlled by the Latin maxim Res ipsa loquitur (the thing speaks for itself). In 1998, however, the S.C.C. declared in Fontaine that this latin maxim has outgrown its usefulness and should no longer be used in negligence cases. The crt did not, however, disagree with the general process of proving negligence by circumstantial evidence that has taken place under the rubic of res ipsa loquitor for over a hundred years. Some general understanding of that process, therefore, remain useful.

• Res ipsa loquitur created an inference of negligence when the accident or event that caused the damage was something that in ordinary human experience does not happen w/out negligence and the situation and circumstances from which the accident arose were under the sole management and control the defendant. In the absence of direct evidence of how the accident happened, proof of these two factors created an inference that it was under the negligence of the D that caused the loss. This circumstantial evidence was said to “speak” of the D’s negligence and a prima facie case was made out. • does not shift burden of proof to defendant, means that circumstantial evidence constitutes reasonable evidence of negligence

Fontaine v. British Columbia (Official Administrator) (1998) S.C.C. *Re Ipsa Looquitur – this case wants to do away with this – the S.C.C. reconsider the utility and role of this maxim Facts: A truck left the highway in severe weather conditions and crashed into a swollen stream. Both the driver and passenger were killed. The family of the deceased passenger sued the driver – no evidence of how this happened –wife of passenger sues driver for negligence Issue: Can P use ipsa loquitur to infer that Fontaine was a negligent driver, resulting in the death of her husband?

Decision/Analysis: wife of passenger loses – no longer appropriate to resort the latin maxim in cases of circumstantial evidence. • Crt holds that the trier-of-fact must simply weigh the circumstantial evidence with any available direct evidence and determine if the P has established a prima facie case of negligence. Once the P has done this, the D must present evidence negating the inference of negligence or the P will win. On the facts in this case, it was held here that there was insufficient circumstantial evidence to create an inference of negligence against the driver of the vehicle. *BUT – does not appear to herald any major changes in negligence law and many of the law res ipsa loquitor cases will continue to rely on this as a reliable guide in the use of circumstantial evidence Ratio: Denies the old rule – the mere fact that an accident occurred would raise an inference of negligence against the defendant, BUT SCC upholds trial judge decision to not infer negligence on the circumstantial evidence. **As a separate law it has expired, but it can still be applied if it is strong enough to meet the BoP that is on the plaintiff **Crt says that re ipsa loquitor has run its course and not relevant (but can if it can be established that it was more probable than not that negligent driving was the cause)

(d) Novel Approaches to the Problem of Proof`
Sindell v. Abbott Laboratories (1980) U.S. *“market liability” – hasn’t been dealt with as of yet in Canadian law – thus has not been either denied nor adopted Facts: P’s mother ingested drug DES during pregnancy to prevent miscarriage. As a result, P developed malignant bladder tumor. P did not know manufacturer, so in a class action suit, she brought action against 11 companies- all in the business of manufacturing, promoting and marketing DES. [DES is a drug that was prescribed to pregnant women b/w yrs 1951 – 1971. It was banned for use during pregnancy when it was discovered that it caused a signature cancer is some of the adult daughters of those women who had taken it. Responsibility of the manufacturer of DES and the link to cancer was never an issue.

However, the latent nature of the injury prevented many P’s from identifying which of approx 300 manufacturers made the actual product taken by their mothers. P’s could not rely on alternative liability b/c that principle is normally restricted to a small number of D’s all of whom can be brought before the crt. Some of manufacturer were now out of business. The defendant companies were not joint tortfeasors b/c they were not involved in concerted action and there was not joint venture to market DES. At best, there was parallel tortious conduct. SOLUTION came in the form of market share liability, and was first recognized in Sindell]

• Market share test – need to argue for its application in Canada; only works in class action, because need that for rough justice. P needs to show: a. That particular product did cause the harm

b. the product in question has to be a generic product created by an identical formula c. The plaintiff has to be blameless in problem of proof d. Plaintiff to join in the action a “substantial share of the market”

• If those criteria are met, then the onus shifts to defendants to prove they could not have possibly made the drug that got the person sick. Ratio: Adopts “market share liability”: where all mfrs. negligent, and one of them must have caused the P’s injury, and Ds represent a “substantial share” of the market at the time, onus of proof of causation shifts to the Ds; if onus not met, liability “for the proportion of the judgment represented by its share of the market” Obiter(Dissent:

• majority has departed from the requirement of the causal connection between D’s act and P’s injury

• Market share liability will discourage research and development in the pharmaceutical field

• grave sweeping economic, social and medical effects of market share liability

• see BC Tobacco legislation; outlines a number of criteria which are to be used in consideration with tobacco lawsuits, one of which is market share (see Statutory Appendix p. 65) o Canadians courts have neither accepted nor rejected Sindell. The BC legislature adopted a principle of ‘liability based on risk contribution’

• Even if the D owed DoC and breached Soc, how far does the D’s legal liability extend? There has been a legal dev over time. There have been limits that have been imposed – time, space, probabaiulity (all which have evolved over time)

• There are times when the loss is so diff from what one might expect, so disporportinate to the magnitude of the fault, or so fluky or bizarre that it would be unfair to hold the D resp legally – in such cases, the crts may resort to the second control device of negligence law and hold that the loss is too remote from the negligent act to warrant liability

• Re Polemis(the directness test is established and stated that the P’s loss would not be too remote to be recoverable if it was a direct result of the D’s carelessness. For the purpose of that test, “directness” was defined in terms of a close temporal and spatial connex b/w the D’s breach and the P’s loss. In this case the crt rejects forseeability to determine remoteness of damage, and rather applies directness (D’s negligence were a direct result of P’s injury)

• Then we come to Wagon Mound 1, which then changes the directness test – no longer directness, it is determine again on basis of reasonable forseeability (which is now used in the context of remoteness of damage)

(a) Directness v. Forseeability
(i) The Directness Test
• Early in the 20th C the crts adopted the directness rule in Re Polemis – and under that rule a D is liable for all direct consequences of her
negligence. Reasonable foreseeability was relevant to culpability (breach and duty) but not to the extent of liability. This test tended to favour P’s.

Re Polemis (1921) C.A.
Ratio: P’s losses would not be too remote if they were a direct causal result of D’s negligent act – close temporal and physical connection – need not be foreseeable, need only be direct

(ii)The Foreseeability Test

• In the mid 20th C, directness had fallen into judicial disfavour, as it was perceived as being too difficult to interpret and apply. This led to a reassessment of the rule of remoteness, rejecting directness as per Re Polemis

The Wagon Mound (No. 1) (1961) Privy Council *directness of damage should no longer be followed –this is too harsh sometimes. Remoteness of damage is used to limit liability for holding someone resp – corresponds with the common conscience of mankind – this case takes issue with Polemis decision and directness Facts: The D, who was the charter of the ship The Wagon Mound, negligently discharged furnace oil into the Harbour. No efforts were made to clean up the oil by Overseas. On the strength of the assumption by the respondent’s manager that the oil was not flammable in water decision was made that the that work on the docks would resume.

The oil spread under the P’s warf where welding equipment was being used by the P’s employees. Molten metal from the welding operations dropped onto and ignited cotton waste floating in the water. This in turn ignited the oil and the P’s wharf was damaged by the fire. As trial, the fire was found to be unforeseeable. But, they applied the directness rule and imposed liability on the D. Issue: Were the appellants liable for the damage caused to the docks? Decision/Analysis: No, not liable. At PC the directness rule was rejected and the D’s appeal was allowed. The crt held that the D was liable only for the reasonably foreseeable consequence of the negligence. • Held that the Polemis decision should no longer be considered good law, as “it does not seem consonant with current ideas of justice or morality that for an act of negligence. . . which results in some trivial foreseeable damage the actor should be held liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct.’” • directness test should be abandoned (only C.A. decision and not binding), b/c does not seem consonant with current ideas about justice and morality that one should be liable for all damages that result regardless of the foreseeability of such damage

• rather, instead it should be: a man must be considered responsible for the probable consequences of his act – Concerned with the foreseeability of damage that actually occurred – not what was foreseeable to occur Ratio: a man must be considered to be responsible for the probable consequences of his act”, therefore, the test of remoteness is to be “judged by the standard of the reasonable man” such that the negligent party is responsible only for those damages which were “reasonably foreseeable.”

• The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen Policy: Courts reject ‘directness’ of Polemis case – was injury a direct cause of D- no interruption of factors? It was found to be o unpredictable and unfair

o does not achieve correspondence between fault and liability – if we rely on foreseeability we are likely to get a more fair result Significance: the SCC adopted this forseeability test eventually and it now well entrenched in Canadian negligence law. In past cases, it is clear that the crts want to promote a broad and robust interpretation of forseeability in the context of remoteness of damage. NOTE: subsequent cases were considered a retreat from the Wagon Mound No. 1 test, which was criticized for limiting liability. It was a shift from the Polemis test to the foresight test.

(b) Modifications of the Foreseeability Test (diff interpretations) The crts have used a variety of interpretive techniques to apply reasonable foreseeability in a generous manner. In combination, they give a great deal of discretion to the trial judge and permit an extensive resp for the consequences of the negligence act

(i) The Kind of Injury
Hughes v. Lord Advocate (1963) HL *need to foresee type and kind of injury – generous towards the P(thus, adding KIND of INJURY onto forseeability of consequence test of Wagon Mound 1 Facts: employees of the D post office negligently left a manhole open and unattended. The manhole had a canvas test over it and paraffin lamps surrounding it. The P took one of the lamps and climbed down a ladder to explore the hole. As he was emerging, he accidently dropped the lamp down the hole where it exploded and, and he suffered serious burns. D argued that the explosion, which was caused by vaporization of the paraffin, was entirely unforesseable and the P’s loss was thus too remote. Issue: Is a defendant liable for an unforeseeable harm arising from a known danger? Decision/Analysis: Yes. It was decided that there was no need to establish the foreseeability of the explosion. It was sufficient that the P had suffered a kind of harm (burns) that was foreseeable. • When the D left the lantern out, it was foreseeable that someone in the P’s position might be burned. So since the type of injury is foreseeable, it is not necessary that the precise chain of events be foreseeable • Post Office held to be liable because the nearby lamp had a known danger of sparks; although the boy falling into the hole wasn’t foreseeable, it was foreseeable that the lamps produced sparks and the sparks caused the boy to fall Ratio: If the type of harm is foreseeable, it is not necessary that the precise concatenation of circumstances which led up to the accident be foreseeable. Significance: The crt decision that it was not necessary to foresee the manner in which the accident occurred, the mechanics of the accident, or the precise concatenation of events that led up to the accident has contributed significantly to the expansive interpretation of the remoteness rule.

The cases that follow in notes – can take a broader or more narrow view of the risk itself, which will determine the outcome of the crt Doughty v. Turner Manufacturing Co. (1964) *the impact of the Hughes test depends on how broadly or narrowly one categorizes the kind of injury that the P has suffered Facts: Chemical change of the compound asbestos cement erupts, when used in conjunction with a cover that has been used for 20 years and injures
the plaintiff. Decision/Reasoning: Employers were not liable because the eruption which injured the plaintiff was unforeseeable by a reasonable man at the time the accident occurred. Also although the risk by splashing was foreseeable this was an accident of another, new, unexpected factor. *the crts here chatacterized the injury as one caused by a chemical reaction – would it have made a difference if they had characterized the injury as a burn?

Lauritzen v. Barstead (1965) Alta. S.C.
Facts: P develops frostbite on foot and needs amputation as a result of the D grabbing the steering wheel and veering the car off the road and had to stay in cold for 36 hours. Decision/Analysis: D held liable

Ratio: D ought to have foreseen the consequences likely to flow from his negligent act in grabbing the steering wheel. The particular harm and precise sequence of events need not be foreseen. The type of damage was foreseeable (frostbite) even if the precise way it came about was not (accused walking to attempt to get help).

School Div. of Assiniboine South v. Hoffer (1970) S.C.C.
Ratio: It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage which in fact ensues is foreseeable

R v. Cote (1974) S.C.C.
Ratio: It is not necessary that one foresee the precise concatenation of events, it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred.

(ii) The Thin-Skulled Plaintiff Rule

• The thin-skulled rule has played a pivotal role in personal injury litigation since the begg. of the 20th C. It states that, as long as some physical liability to the P was foreseeable the D is liable for all the
consequences of the injury arising from the P’s unique physical or psychological make-up whether or not those consequences were foreseeable (D must take victim as he finds him and compensate for the full extent of the losses)

Smith v. Leech Brain & Co (1962) HL *shortly after Wagon Mound 1, the thin-skull rule was challenged on the ground that it was inconsistent with the foreseeability test adopted in that case. This issue was resolved in the next case Facts: The P’s husband was working with a tank of molten metal. At a moment when he was looking away, a piece of metal flew up and hit him in the lip. The burn caused cancer, due to the plaintiff’s pre-existing condition. Issue: Is the defendant liable for the full extent of the damages caused by its negligence? Decision/Analysis: D found liable. The crt recognized that the deceased was predisposed to cancer and the burn was a promoting agent. Nevertheless, the crt reaffirmed the thin-skull rule and imposed liability. It was sufficient that the burn was foreseeable. It was no necessary to foresee the cancer or death. • Held that Wagon Mound 1 does apply to cases of the ‘thin skull’ rule, as it was primarily concerned with limiting liability for damages that were not foreseeable in type rather than extent. As defendants must take their victims as they find them, they are liable for damages for an extent that was not foreseeable so long as the damages themselves were of a type which was foreseeable (i.e. in this case, the burn was foreseeable; the eventual consequences of their damage was not). Wagon Mound 1 cannot be applied here – dealing with a diff issue.

• D is liable to full extent of P’s injuries, not withstanding the pre-existing condition that led to a greater vulnerability • If (1) the type of injury is reasonable foreseeable (from Hughes and Wagon Mound 1), then, (2) don’t need to establish that the extent of the harm itself was reasonably foreseeable • The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer…the question is whether these defendants could reasonably foresee the type of injury which he suffered, namely, the burn. Ratio: Where a defendant is liable for A harm, he is liable for the full extent of the harm even where the full extent was not foreseeable, so long as the type of harm was reasonably foreseeable. Significance: while this rule can operate harshly on D’s, this rule remains well entrenched in Canadian negligence law and there are good policy reasons supporting it: (1) promotes the compensatory goals of negligence law, and (2) relieves the crts from the difficult task of determining the normal and foreseeable consequences of trauma in the context of the uniqueness of individual persons.

Marcanato v. Franklin (1974) B.C.S.C.*pushing at the bounds of the thin-skull rule Facts: P suffered minor injuries in car accident, developed symptoms of pain/stiffness, she became depressed, hostile and anxious. Psychiatric evidence indicated she had paranoid tendencies before, accident triggered major personality change Issue: Were the non-physical injuries too remote to be reasonably foreseeable? Decision/Analysis: D found liable for all consequences of negligence.

• The injury is recoverable, and does this by moving away from remoteness and rather applying a thin-skull analysis • Causation(pre-existing condition were inactive and triggered by the accident • Remoteness (once you recognize that some injury is reasonably foreseeable (some personal injury in car accident), and also that the accident – it is what caused/excaberated her latent condition, at that point reasonable Ratio: affirming thin-skull rule in Smith v. Leech Brain(tortfeasor takes victim as he finds him

**Swami v. Lo (1980) S.C. – not consistent with decision in Marcanato – P’s husband took his own life over a year after an accident that was negligently caused. D argued too remote to be recoverable. Crt here agrees with D’s defence, thus there are limits that crt will impose before switching over to a straight thin-skull analysis. The crt decided that Smith did not apply to the facts of the case and dismissed the P’s claim as being too remote

(iii) The Possibility of Injury

Wagon Mound (No. 2) – Overseas Tankship v. Miller Steamship (1967) P.C. Facts: same incident as No. 1, but here, the P owned a ship that was tied up to the wharf where the fire occurred. It also suffered considerable damage. Issue: Are they liable to the damages to Miller’s ship, was it foreseeable? Decision/Analysis: D found liable. It was foreseeable as a possibility, which is enough (in this case). D was not justified in ignoring the risk because allowing furnace oil to escape was illegal, caused financial loss; it was of no benefit to anyone. • The evidence adduced at trial, on behalf of the P shipowner, was different from the first case and it supported a conclusion that while damage by fire was not probable, it was a possibility that exceptional circumstances could become an actuality. The risk of fire was low, but it was not so far-fetched as never to occur to the mind of a reasonable person. This was held to be sufficient to satisfy the foreseeability test and liability was imposed. This modification of the foreseeability test to include possible damage encompasses most direct consequences of a negligent act and further dissipates the pro-defendant emphasis of Wagon Mound 1.

• The question was whether a reasonable man having the knowledge and experience to be expected of the chief engineer would have known that there was a real risk (unlikely, but enough to be a real risk), weighed the risk against the difficulty of eliminating it (more of a std. of care issue) • creates low threshold for foreseeability – some argue similar to Re Polemis Ratio: In terms of remoteness, a possibility is enough, only used when for illegal activity or an activity that has not social utility whatsoever. This case is seen as a return to the polemis test however it is only cited for the later purpose otherwise W.M.(1) is used. *Reasonable foreseeability turns into – as long as there was a reasonable possibility, that he would not brush aside as far fetched, even if rare – has to be a real risk – occurring to the mind of the reasonable man in the situation of the D

What do the crts in Canada do with this?
Assiniboine South School Division v. Greater Winnipeg Gas Co. (1971) Man CA * a common technique to bridge a substantial gulf b/w the negligent act and the ultimate damage is to divide the causal sequence into a number of discrete steps, each of which is a readily foreseeable consequence of the preceding stop. A narative from step to foreseeable step allows the gulf to be spanned in a persuasive way with apparenet fidelity to the foreseability principle. This technique was used in this case Facts: auto toboggan operated by boy (allowed by dad) ran out of control, struck a gas-riser pipe servicing the school, pipe fractured, gas escaped, entered boiler room of school, ignited by open flame – explosion and fire Decision/Analysis: liability apportioned: 50% liable, father/son, 50% gas company

• the chain of events that led to the fire was broken down into a series foreseeable occurrences. They included the foreseeability of impact with a building, foreseeability of gas-rider pipes on buildings in that area of Winnipeg, foreseeability of impact with a gas rider pipe, foreseeablity of the escape of gas from the impact with the pipe, and foreseeability that gas might find its way into the school were it might be ignited by a foresseable pilot flame in the boiler room. Forseeability was thereby established and liability was imposed.

• one need not envisage “the precise concatenation of circumstances which led up to the accident” ( found father and son (taking part in adult activity) jointly liable, construction of gas pipes not an intervening act breaking chain of causation

• pipe was negligently constructed in the sense that it was constructed in such place and manner as to make likely the type of damage which ensued • Gas company ought to have foreseen damage, must weigh probability of injury resulting and the probable seriousness of the injury – duty to take proactive measures increases in direct proportion to risk Ratio: The technique of building foreseeability on foreseeability is not uncommon in remoteness case.

(c) Intervening Causes
• An intervening cause can break the chain of causation = noveous actus intervenius. This can break the chain of causation – an intervening act is one that arises after the D’s negligent act and either precipitates or worsens the P’s damage. It can be either a culpable or non-culpable act of a 3rd party, or act of nature • Trad, this doctrine favoured the D using but-for analysis, but modern crts are not as eager to protect D’s from the consequences of their negligence and are now less likely to regard an intervening act as exculpatory. Since the issue is one of remoteness of damage, it is not surprising that the foreseeability test has been adopted to determine if the D is liable for the loss triggered or worsened by the intervening act. If the intervening act was broadly w/in the scope of the foreseeable risk created by the D’s negligence, he remains liable for the damage caused by it. There does still remain the idea that the more culpable
the intervening act is, the more likely it is to be found to be unforeseeable.

Bradford v. Kanellos (1973) SCC *in this case, the central role of reasonable foreseeability in deciding if an intervening act curtails the D’s resp was confirmed Facts: P was a customer at the D’s restaurant. An employee of the D negligently caused a minor grease fire on the grill which triggered the automatic fire extinguisher. The hissing sound of the extinguisher caused an unindentified person to shout that gas was escaping and that an explosion might occur. The customers panicked and in the rush to get out of the restaurant, the P was knocked down and injured. D tried to rely on novus actus intervenius – why I am resp for the act of an idiotic person? At trial, D found negligence in flash fire b/c grill had not been cleaned as efficiently as it should have been – panic could have been foreseen. C of A overturned. Decision/Analysis: SCC argued that the intervening act was unforeseeable and the D was not liable.

• The actions of the 3rd person were hysterical and idiotic and were beyond the contemplation of a reasonable person. • Maj: injuries resulting from hysterical conduct of customer which occurred when safety appliance properly fulfilled its function could not be fairly regarded as within the risk created by the respondent’s negligence in permitting an undue quantity of grease to accumulate

• Dissent: “the person guilty of the original negligence ought reasonably to have anticipated such subsequent intervening negligence”. Here, the dissent agreed the foreseeability was the appropriate test but disagreed with the maj’s application of it. In his view, the intervening negligence was a usual and normal human response to the situation that occurred and, in that circumstances, was utterly foreseeable Significance: the contrasting judgments in this case are reflective of the uneven handling of intervening negligent acts. In spite of the decision in this case, the crts are much more likely to treat intervening negligence as an opportunity to impose joint and several liability on both wrongdoers than as a reason to protect the initial wrongdoer. To that extent, the judgment of the majority may be more reflective of current attitudes than that of the dissent.

Price v. Milawski (1977) Ont. C.A. *raises q of applicability of noveous actus interveneous w/in medical forum Facts: P injured ankle playing soccer, went to hospital, Dr. x-rayed foot, went to orthopaedic surgeon, called hospital, negative x-ray, no new ones ordered, went to another o.s. who took new x-rays, discovered fractured ankle – P suffered permanent disabilities. Decision/Analysis: both D’s held equally negligent.

• This case is reminiscent of wagon mound 2 – it is reasonable foreseeable that dr 1, once it make error and gets into medical records, that other doctors might rely on this, even though that itself is negligent. This possibility was not a risk a reasonable man would brush aside as far-fetched

• reasonably foreseeable that other Drs. would rely on accuracy of info., without checking even though to do so might be negligent

• later negligence compounded effects – did not put a halt to consequences of first act, and attracts liability for all damage from that point forward Ratio: A person doing a negligent act may be held liable for future damages arising in part from subsequent negligent act of another, in part from his own negligence where subsequent negligence reasonably foreseeable as a possible result **It’s for the D to prove that some new act rendering another person liable has broken the chain of causation **Original tortfeasor absolved of liability for an injury P sustains while recuperating if P has been contributorily negligent

(a) Introduction to Damages
The remedy for P’s who suffer loss to recover loss as a consequence of the D’s negligence is an award of damages. Damages can be compensatory, aggravated, or punitive. 1. Nominal/Aggravated(where there has been a tort with no injury or physical loss suffered. Are also compensatory in nature and they are awarded for the humilation, embarrassment, or distress caused by the nature and gravity of the D’s wrongdoing. 2. Punitive or Exemplary(awarded when a D’s conduct is so outrageous, vicious, malicious, or despicable that it warrants a severe reprimand and punishment.

• this will tell you the resistance of the courts to apply punitive damages…unlike the US Robitaille v Vancouver Hockey Club (1979) B.C.S.C.(one of the few cases where punitive damages where awarded in a canadian neg claim. The D’s medical staff consistently ignored the P’s complaints about a serious injury, and suffered permanent condition when forced to play in an injured condition, and got a rep as a malingerer. D’s conduct was seen as “high-handed, arrogant and reckless disregard for P” and P got $35,000 in punitive damages. **this was accepted subsequently in Vorvis S.C.C. Socially unacceptable? Should punitive damages be awarded?

• On the other side, in Kraft v. Oshawa General Hospita (1985) C.A. crossword doing of D anaesthetist resulted in severe brain damage. The crt here found that the D’s conduce was not “ malcisous or included an intent to harm, and this is not one of the rare instances which required the application of punitive damages. (Q. Is the D’s conduct here any less blameworthy than that of the conduct with respect to intentional torts i.e. the Van hockey club?)

• In Vichek v Koshel (1988) B.C.S.C., punitive damages where awarded even though the P’s acts were not directed toward the P, as long as it was malicious or reckless enough to indicate a complete indifference to the welfare and safety of others. Here the P baby was injured by defective vehicle when manufacturer car company did not recal despite numerous similar accidents. **Aggravated and punitive damages play a modest role in the Canadian negligence law. The conduct of D’s in negligence cases rarely warrants either aggravated or punitive damages.

They are most commonly awarded in cases of intentional injury. **primary purpose in tort law is to compensate, thus a reluctance of awarding aggravated and punitive 3. Compensatory(in negligence actions, the primary focus is on FULL compensatory damages. They are essentially restitutionay in nature, designed to the put the P in the position she would have been if the negligent conduct had not taken place. Lump sum awarded and not reviewable. ▪ The usual awarded in negligence claim….put the plaintiff in the position that she/he would be in if the injury hadn’t occurred

The “thin wallet” plaintiff
• Can be reasonably foreseeable that the plaintiff cannot afford to take action to mitigate the damages by (for example putting back a roof) as a result the damage increases • Used to be tough luck for the plaintiff

• Change in the law that would award damages for additional loss suffered as a result of a plaintiff who could not afford to address damages on his/her own

Preliminary Issues

• Burden of proof
▪ First it must be a type of loss that is compensable by torts….ie. grief and loss – grief and sorrow is not compensable (recoverable under the common law) ▪ Only if it reaches the point of nervous shock ▪ Plaintiff has the burden of proofing the quantum of damages, on a BoP • Standard of proof

▪ Pre trial loss
• If P proves on a BoP, they are entitled to recover 100% of the claim ▪ Post trial loss

• Used to be the same as above (Pre trial), but now dealt with in a different way

• Instead of a BoP test…a reasonable possibility test is used o i.e. if a plaintiff establishes a 35% chance of losing sight as a result of the negligent cause….she can recover that amount 35% o For possible future loss…if it was 65% then it would be 65% of the damages • The plaintiffs obligation to mitigate damages and what is required ▪ the onus is on the plaintiff to avoid the loss or at least mitigate the loss – (factor in the Thin wallet point) ▪ if the steps taken to mitigate the loss cost $ the plaintiff can recover those monies ▪ Plaintiff can’t recover for losses that she did in fact avoid ▪ Janiak v Ippolito (1985) S.C.C. – crt held that P unreasonably did not take the surgery so failed to mitigate (less than 10% poor result and less than 1% of paralysis), so damages reduced • Consider whether there are parallel expenditures that need to be set off ▪ set-off against P’s damage claim any parallel expenditures that P would have incurred had tort not been committed (institutional food plan vs. eating) • Lump sum

▪ calculating damages in advance is at best speculative(“one kick of the can” ▪ Structured settlements – periodic payments(can be decided by parties to engage in; no legislation requiring it, but many downsides ( time, re-litigation, stress ▪ Structured settlements(cases mostly settle before trial, and when a claim has been settled, the awards are structured, and NOT paid in a lump sum, rather a series of periodic payments over time, insured by the D’s insuerer by an annuity (retain a specialist to ensure that client’s interests are being taken into account), with a sum to cover expenses already incurred plus over time of future expenses, and can vary over the term of the settlement i.e. cost of living would increase based on child going to university.

• At cl, a single lump sum is awarded and the cl knows nothing of periodic payments or of anysystme for reviewing and varying the lump sum as future circumstances might warrant. The lump sum has certain advantages, including finality, certainity and asminitrative efficieny, but a hight price is paid in terms of the accurancy of the ward and the time it takes either to settle or adjudicated the appropriate quantum.

A judicial initative to introduce a modest system of periodic payments was unsuccessful and it is not clear that some provinces are willing to allow periodic payments in limited circumstance i.e. Ont. Courts of Justice Act. The significant advantage is that the payments are not taxable in the hands of the P. This provides some efficiens over the lump sum, b/c altought he lump sum is not taxable, the interest on it is. Structured settlements are paricualry useful in the case of a injury to a young child, where payments can be delayed until the age of majority which permits an accumlation of investment income to the advantage of the P. (if this makes so much sense, why not get crts to do structured settlements as well? B/c the crts does not have the power to impose structured payments • Roles of the Judges juries and appellate courts

▪ damages assessed by the trier-of-fact (trad, jury decided this and did not get any guidance, rather just assessing the evidence to decided what amount should be established) ▪ neither counsel nor judge allowed to refer to awards in similar cases(appellate courts not to interfere with jury’s assessment unless clear error in law or grossly inaccurate ▪ CANNOT go back and reassess

▪ Monahan v. Nelson (2000) B.C.C.A. – P died unexpectedly dies but the trial judge awarded damages as if P was still alive. Usually appellant crts do not interefere with trials judge’s assessment of damages, but there has to be either error of law, or wholly erroneous estimate of the damages • Inherent Problems

▪ how do you determine how much longer P’s life will be, loss of amenities of life, etc? • this has built in problems
• hard to predict precisely what all the effects are going to be • usually, significant expert evidence will help to determine the cost of that injury • Assessing unwaged:

o homemakers(mkt replacement
o students(assumptions based on education, specialization, leanings o children/infantss(class, family background o females(embedded sexism and lower salaries than male counterpart – gendered wage tables and gendered contingencies

(b) Damages for Personal Injury
History leading up to Andrews and Aftermath
The calculation of damages for personal injury has undergone a dramatic change in the last 25 yrs. Prior to 1978 judges tended to make an impressionistic global award for all P’s past and future losses. No explanation, justification or itemization of the lump sum award was give.

This assessment process was unscientific and unreliable and probably led to the under compensation of many P’s. In a trilogy of cases, the S.C.C. reformulated the principles upon which damages for personal injuries are assessed. Separate assessment of each head of damage based on best available (often, actuarial) evidence.

Andrews v. Grand & Toy Alta. (1978) SCC *basic approach the crts will take in assessing damages * here crts would rather see periodic payments that can be adjusted, BUT this would be a matter for the legislature and not the crts Facts: young man rendered quadriplegic in traffic accident employee/employer found partially liable Issue: How do you assess the damages in this case?

“The subject of damages for personal injury is an area of law which cries out for legislative reform. The expenditure of time and money in the determination of fault and of damage is prodigal. The disparity resulting from lack of provision for victims who cannot establish fault must be disturbing.” Decision/Analysis: Breakdown of Damages in Andrews are as follows, and are not set at cl. (1) PECUNIARY LOSSES

(a) Future Cost of Care: Key issue – Home care or institutional care? (Home care preferable if P aware of surroundings; in this case Andrews retained full mental functioning) • institutional care is cheaper and argued for by D (tried to argue level of provision you would receive from a government funded compensation scheme is much lower than that required for home care); home care is much more expensive and argued by P – court says that standard is not merely provision but compensation (putting the P in the position he would have been in – he would have been living in his own home)

• Justice Dickson alludes to the fact that this is a car accident and drivers have insurance, therefore, risk spread amongst all those who are engaging in this activity (ie. driving) we can safely assume that D has insurance so there is no reason that the P should not be compensated to live at home with home care

• multiply annual costs of care by post-accident life expectancy (45 years) • would have been 50 years but they took 5 years off because he is a quadriplegic • goal is to award a self-extinguishing sum

• 20% discount (ie. deduction from total award) for contingencies and hazards of life • Dickson comments that the whole practice of making contingencies deductions seems arbitrary – fortune can swing in either direction • Practice doesn’t really make sense anymore, because we are relying on statistical and actuarial predictive evidence – why would they make an arbitrary deduction?

• Contingency deductions used to be routine and always subtracted – something courts do casually with profound consequences – with no contingencies arising, Andrews will be left without funds for care for a decade of his life • There are social services that would cushion against these anyway • Dickson questions the appropriateness of the deduction but defers to the lower courts. States that in the future, contingency deductions should not be made in absence of evidence • special equipment

• costs of medical treatment
• Even though we have a public system, the P is awarded the costs of medical treatment and OHIP is reimbursed (b) Loss of Future Earning Capacity – loss of the “ability” to work, therefore P would not have to be working at the time to receive this award • Court starts with what job the P was at the time of the accident and takes into account evidence of future career plans

• Here Andrews was employed…court used an average of current salary and max salary in the field to determine a yearly wage • Take into account pre-accident working life expectancy to determine how many years lost future earnings should be paid (remember it is loss of the “ability” to work)

• Deduction for costs of basic necessities made after computing award for future care (already receiving damages for these expenses, cannot fully recover both lost earnings and care) • Ignore tax at both ends as we can assume that consequences of ignoring tax will even out – income on interest will be taxed just as income would • Same discount rate applies

(c) considerations relevant to both heads of pecuniary loss
• Capitalization rate: allowance for inflation and the rate of return on investments o Award will be amount supported by evidence less 7% because this portion will be earned from investment income o Nominal interest rate minus inflation rate to produce real interest rate (formula set out in Ontario Rules of Civil Procedure) • Allowance for Tax

o Sum is “grossed up” to take into account taxation – denied to Andrews but subsequently established in Watkins and Scarff o Initial lump sum award is NOT taxed but the interest income is taxed (2)

▪ pain & suffering
▪ loss of enjoyment of life
▪ loss of expectation of life
• SCC places a cap on this sort of damages – $100,000 (1978 terms – adjusted for inflation, now the cap is $280,000) • Award is assessed on a functional basis – to provide solace – money can’t really replace these things at all but money can serve in a functional way to make his life more comfortable, significant b/c although Andrews was physically disabled, he was still fully mentally capable – could still live a full life

**Under s. 116 (1) of the Courts of Justice Act, RSO 1990, c. C.43 it is possible if all parties consent to adopt a periodic payment schedule. The courts do have the power to deny structured payments based on the best interest of the plaintiff. There are three criteria 1. Whether the defendant has sufficient means to fund an adequate scheme of periodic payments. 2. Whether the plaintiff has a plan or method of payment that is better able to meet the interests of the plaintiff then periodic payments by the defendant. 3. Whether a scheme of periodic payments is practicable, having regard to all circumstances of the case. The onus would be on the plaintiff to show that lump sum payments would be more suitable, but the burden is not high.

Ratio: SCC describes a new a comprehensive approach to assessment of damages – far more precise, almost scientific 1. Pecuniary Loss
a) Future Care
i) standard of care
ii) life expectancy
iii) contingencies of life
iv) duplication with compensation for loss of future earnings v) cost of special equipment
vi) prospective loss of earnings
b) Prospective Loss of earnings
i) Level of earnings

ii) Length of working life
iii) contingencies
c) considerations relevant to both heads of pecuniary loss i) Capitalization rate: allowance for inflation and the rate of return on investments ii) Allowance for Tax
2. Non-Pecuniary Loss
i) pain & suffering
ii) loss of enjoyment of life
iii) loss of expectation of life

**nt 2 Arnold v. Teno (1978) S.C.C.– one of the 3 cases in the trilogy – involves a 4 yr old girl who heard ice-cream truck and was hit by car and becomes severely disable. Girl was successful – there is a difficulty arising when the child who is injured in very young. How do you figure future earning capacity? The crts decided it was reasonable that she could be a teacher like her mom, and is awarded $7000/year – $3000 less than what her mom makes

**there can be the problem of potential duplication b/w the future care and lost earning capacity awards. Need to ensure that you are not duplicating the awards…the Andrews approach can favour the P, especially when the unadjusted future care cost is grossed up, but crts see this as the fairer approach, b/c need to provide for proper future care

Remedies: The Law of Damages, J. Cassells
Special Problems in Assessing Lost Earning Capacity
In Andrews, Dickinson J. referred to the process of estimating lost earning capacity as akin to looking into a crystal ball. In some cases, where the accident happens to a mature ind with an established earning record, then it will be easier to determine. However, in cases of children and others w/out a recent earning record the matter is more controversial. (a) Children

• incorporates a lot of assumptions – if parents are well off, then so will they, etc. Thus there is a danger of unstated and unintentional biases and assumptions that will affect the award • e.g. is Teno – where in the
absence of any reliable evidence to assess her loss, the crt accepted the P’s mother’s salary as a teacher as a fair proxy – which the SCC REDUCED. In the absence of evidence in this case, the crt seemed prepared to assume that the P would not have achieved even the modest success of her mother. *it seems probable that the judge was relying on certain unstated assumptions based on gender –in particular, the assumption that she would marry and that this would reduce her earning capacity *this is the poverty-line approach, and is not excusive to females

• the preferable approach (though far from perfect) is to attempt to base the wage-loss prediction upon the evidence. The child may have an educational track record or career aspirations that can assist the crt in making assumptions. Also, experts will testify as to the likely educational level that the child might have attained but for the accident and will present earning stats for persons of that level of education as a basis for compensation. **obviously such predictions are fraught with peril and social assumptions – parental education and income, family socio-economic status, birth order, and family stability **it is a matter of continuing judicial controversy whether , in the case of the child, stats data should be used which reflect racial and socio-economic stereotypes.

(b) The Use of Gendered and Racialized Statistics: The use of gender and racialization status is NOT good – what group does this P belong to? Very diff results from M v. F – f end up with less than their male counterparts in terms of lost earning capacity (i) The Impact of Statistics

• 15 yr old F P, and the amount calculated that the amount awarded for her was far less than what the male would have earned…some crts have attempted to close this gap somewhat, but that gap in earning still remains significant. The compensation figures for women incorporate and reproduce the large wage gap b/w men and women

• even worse when race is added into the mix – worse when there is both a female AND in a visible minority – Parker v. Richards female aboriginal case= “expert evidence” held that she was in one of the lowest social economic groups in the country, and adopted a welfare payment standard! *this practice of relying on gender and racialized stats if problematic (but position of P but in position as they
are found)

(ii) De-gendering the Statistics
• with the wage gap becoming more equal, it is now standard practice, while still using female stats, to adjust the wage-loss figure upwards to take into account the trend towards wage parity. The SCC implicitly has recently endorsed this approach, and other crts have followed suit. • going one step further, it has been argued that reliance upon gendered (and racialized) stats simply reproduces and replicates social injustice, and that the time has come to reject the practice by relying instead on broader-based or more favorable data.

This arg was adopted in Tucker v. Asleson (B.C.) – wants to move away from gendering, rather lets look at a broader set standard. 8 yr old girls income capacity determined on stats of income of a male university graduate. BUT than adds 63% negative contingency reduction – EVEN WORSE – moving away from gendering and manipulating to get the same result. The decision was upheld in the CA, though w/out any strong endorsement of the use of male stats – arguing that this prob of bias stats is not one that can be solved in the law of remedies. The stats accurately reflect social reality. The injustice in itself is not caused by the D and P should not be remedied with a more generous damage award. Thus, concerned with corrective justice, rather than making room for distributive justice. While tucker has not been overruled, most crts continue to use gender-specific stats (though generally grossing them up for improvements in the wage rates of women).

On the other hand, in several recent cases, male stats have been used for young F’s P’s, but only on the basis of evidence that these specific inds would have likely have pursued prof careers in a typically “male” pattern. At the time of writing, only one case has taken position that as a matter of law gender-relate factors must be filtered out of the damages calculation (MacCabe v. Westlock). **for the most part – crts are taking into account gender wage – BUT they are starting to be more generous with F’s

(c) Other Gender-Specific Problems: The Marriage Contingency • even if a women is employed at the time of the accident, and her award is based on her actual earnings as opposed to stats, that award may still be reduced by certain gendered assumptions. Most significant are the marriage contingency and the childbearing contingency.

These are deductions made from awards b/c of the assumption that women will leave the workforce in order to marry and/or raise children. Awards also reduced by a contingency factor to take into account “time off for family purposes”

• even at the end of her career, also found assumption that women will retire earlier than male counterparts • Interesting to note – that considerations of family and marriage will work in favour of the men, and even increase their award

R.H. v. Hunter (1996)
Facts: The D doctors failed to refer the P for genetic counseling and as a result the P’s 2 children were born with genetically transmitted Duchenne muscular dystrophy, a disease that progressively deteriorates the muscle structure of the body, requiring constant care and greatly reduced life expectancy. Issue: What damages are appropriate?

Decision/Analysis: Doctors found liable in negligent. The P claimed general damages, damages for wrongful birth, cost of future care and medication, special damages and her own loss of future income from caring for her disabled children. -Judge needs to deal with determining the amount of damages in this case -Types of things that have to be taken into account – see p. 154 • general damages to both mother and father

• special damages
o wage loss of mother
o cost for transportation
o costs for medication
• loss of future income to mother
• costs of future care
o medical needs
o aids to daily life
o accommodation
o transportation
o education
o vocational/avocational

o professional services
o respitory assistance
o attendant care
• cost of future medications
total damages = $2,918,965

(c) Survival Actions and Dependant’s Claims for Wrongful Death or Injury • use to be at common law the causes of action in law did not survive death of tortfeasor or victim, and was also the case that one had no cause of action for losses that one would have suffered through the death of someone else, BUT legislation has been passed that nullifies the above common law standing – some recovery will be available to estate of person who has died and to the family *keep in mind that the leg varies from prov to prov

Negligently caused death
Survival action brought by executor of estate of deceased: see s.38 of the Trustee Act Wrongful death claim by family members of the deceased: see s.61 of the Family Law Act

Survival action brought by executor of estate of deceased(Trustee Act RSO 1990, c. T.23, s. 38 NOTE: Limited to losses prior to death. Can include: pain & suffering, loss of amenities prior to death; lost income prior to death; costs of care; property loss; funeral expenses (if paid for by the estate); obviously can’t recover cost of future care Purpose: vindicate the rights of the deceased violated by the D’s tort (but no claim for death itself) o Estate can vindicate the action that the deceased would have had

▪ Deceased would not have had opportunity to sue before death o it is not for the death itself (strange for deterrence), but compensation to an individual to restore them to a position they would have been in ▪ Once someone has died there is no one left to compensate, so vindicate prior to death (earning prior, or costs of care prior) We haven’t actually overcome this perversity note 6 p. 746 Vana v. Tosta, but we haven’t really. In an instantaneous death the damages are almost nothing. One of the ironies of our civil compensation. In practical terms most of the time s. 61 of the family law act is much more important. Actions by executors and administrators for torts

38.  (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act. (your estate can sue on your bealhf after you die, except for defamation) Actions against executors and administrators for torts

(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong. (except in cases of defamation, someone can still sue you—hmm, that’s interesting, they’re still defamed) Limitation of actions

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.  R.S.O. 1990, c. T.23, s. 38.

Wrongful death claim by family members of the deceased(Family Law Act, R.S.O. 1990, s. 6 Purpose: compensate family members for their consequential relational loss- compensatory damages o emotional loss, loss of guidance, loss of caring, loss of companionship – true for wrongful death action and personal injury claim – so P would sue the D and the family member would sue as well – nursing care, travel costs to the hospital o Funeral costs or loss of deceased’s income that would have flowed to other family members o loss of deceased income: usually the main claim (if die at young age and was the breadwinner of the fam, claim income over course of life) future earning Right of dependants to sue in tort

61.  (1)  If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. (ie, if a family member who supports you is killed or injured and they would have gotten damages, you can sue for the support you would have received from said person)*

Damages in case of injury
(2)  The damages recoverable in a claim under subsection (1) may include, (a)    actual expenses reasonably incurred for the benefit of the person injured or killed; (b)    actual funeral expenses reasonably incurred;

(c)    a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery; (d)    where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and (e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. o Vana v. Tosta – The SCC affirms that damages can be awarded for the loss of guidance, care and companionship for any family member, including children.

Keizer v. Hanna (1978) SCC *the death of a family provider

Facts: P’s husband killed in accident; life expectancy 38.55 years, good health, 1 child 6 mos old; Trial projected earnings $15K over 31 yrs, less $3,200 income tax, $1,800 personal use, leaving disposable income $7,000; $6,500 insurance pay-out not deducted Issue: What is the appropriate quantum of damages?  Should the impact of income tax to be considered in arriving at
an award of damages? Decision/Analysis:

• take into account age of infant, age of wife, his spending habits, e.g. – trying to get a number of disposable income that would have been available. Once a total is found, it is apportioned to the wife and son Ratio: For compensation for loss of support under the Fatal Accidents Act, the court is to award a capital sum sufficient to replace the lost support, the value of which is to be calculated by considering the net income of the deceased after payment of income tax and other expenses

(d) Death of a Dependant Family Member
• Actions are brought under fatal accidents leg as a result of the death of a family’s primary earner – but the leg also extends to family mbrs…it is poss for a man to bring an action as a result of an accident that resulted in the death of his dependant spouse or infant child • note that the amount recovered is much less than what one would get from the loss of a family provider – the primary reason for that discrepancy lies in the fact that fatal accident leg is intended to provide compensation for pecuniary losses only. Accordingly, unless the claimant is able to prove on BoP that, but-for the fatal accident, he would have received a pecuniary benefit from the deceased, relief will not be rewarded (another reasons it is low is b/c the crts continue to under-appreciate the economic value of services provided at the home)

• it is evident that crts are only interested in pecuniary losses – NOT non-pecuniary • crts notes that for the most part children are generally a net cost, BUT there are some exceptions when crts are trying to be culturally sensitive and increase awards b/c it was a tradition in Chinese culture that children are financially supportive of parents as they get older, but amounts awarded are not particularly great…but again, these cases can be overturned

(e) Collateral Benefits
• Up to this pt, is has been assumed that the D is the P’s sole source of compensation – however, in most cases the P will also receive compensation in various forms from collateral sources, such as gov’t health insurance, private insurance or employment benefits. The issue then becomes – should the d’s liability be reduced b/c of other benefits received from collateral benefits? o when there is not statutory or contractual provision to the contrary, certain types of collateral benefits need not be deducted from the P’s damage, such as private insurance, charitable gifts, pension benefits and public welfare and unemployment benefits. Moreover, the deductibility of these types of collateral benefits are governed by statue and include provincial health insurance, workers comp and auto insurance

• In recent yrs, this issue has been most prevalent in context of employee benefits o Ratych v. Bloomer (199) SCC – a police officer continued to receive payment from employer during a period of convalescence, and SCC held that the D was able to deduct those payment from the damages that were payable. o In Cunnighman v. Wheeler (1994) SCC the facts were similar here.

A railway employee continued to receive payment from his employer during a period of convalescence. But, in contrast to Ratych, the crt held that the D was NOT permitted to deduct those payments from the damages that were payable. So, what is the diff b/w these two outcomes? can be attributed to the evidence of proof of loss. In Raytch, the P failed to prove that he had in any way “paid” for the disability benefits that he received from his employer. Moreover, the evidence indicated that the police officer did not lose any accumulated “sick days” as a result of the missing work. In contrast with Cunningham, the P proved that, while he did not pay fro the disability benefits by way of pay cheque deductions, he and fellow employees effectively purchased the right to receive such benefits during labour negotiations.

The employer had agreed to provide the employee with a global package of benefits – if the employees had not chosen to receive part of the package in the form of disability benefits, they would receive higher hourly wages. On that basis, the judge reasoned that the disability benefits here were indistinguishable from the benefits acquired under private insurance, which are non-deductible.

(a) Introduction
• Even if P proves D negligently injured him, damages can be reduced or denied on the basis of a defence • Relating to facts surrounding the D’s conduct, and the BoP is on the D on BoP to prove defence AND that the P’s
actions WOULD have reduced the injury i.e. seatbelt issue in gagnon

(b) Contributory Negligence
• The defence of contributory negligence can occur in situations when the P enters dangerous situation carelessly, carelessly contributes to an accident, or carelessly contributes to a resulting harm • The Development of the Defence: trad at cl, the P denied recovery if they played a part in neg act, and no apportioning of losses was allowed. Even if contribution was very insignificant, the P would nonetheless get off the hook • To repair this injustice, crts dev “last opportunity” rule, which permitted P to recover if the D had the last clear chance to avoid the accident but failed to take it *but was severely criticized b/c it casted all liability loss onto the P • There is now leg enacting the apportination of liability, but didn’t happen until the turn of the C

Walls v. Mussens Ltd. (1969) N.B. C.A
Facts: fire occurred at a service station, and there were ineffective efforts to extinguish the fire (shoveled snow as opposed to using extinguishers that were available) Ratio: D has to respond to the position that P put him in the first place, and the test is NOT taking proper care, but rather did the D act as a prudent man under those circumstances (a more lenient test) **A.G. Ont v. Keller – officer injured in high-speed police chase – should police officer be expected to take less care for their own safety b/c of their job? **Heney v. Best – chicken farmer and chicken’s die of asphyxiation when the D negligently cut the power supply off to the barn – is owner contributory negligent b/c he did not turn alarm on that night? Farmer argues that it is not the norm to turn it on. The crt nonetheless decided that the P was contributorily negligence for not reasonably taking care of his property

Gagnon v. Beaulieu
Issue: what is the onus on the D, having raised this as a defence? Decision/Analysis: failure to wear a seatbelt might be a step one ought reasonably to know – depends on the evidence: if, on the evidence, it can be shown that wearing a seatbelt would have stopped some of the injures, contributory negligence can be proven, BUT if evidence says nothing of the sort, than defence will not be in play Ratio: onus is on the D to satisfy the crt on BoP (1) P did not wear seatbelt,and (2) injuries would have been reduced or avoided (causal connex proven)

Negligence Act
• s. 3 of the negligence act says where damages have been contributed to through fault or negligence of the P then damages can be apportioned

Mortimer v. Cameron (1994) Ont C.A.
Decision/Analysis: arrive at concl that injuries suffered were not reasonably foreseeable – judgment affected by crts recognition of who the d’s are here – friends who are broke university student • crt take a kind view in characterizing the d’s conduct

• building owner had resp to keep stairway up to par and breached SoC • CA changes the apportionment of the damages

Snushal v. Fulsang (2005) Ont C.A.
• recent decision of Ont C.A. involving car accident – P is passenger in the car that is rear-ended – turns out at trial that BOTH drivers apportioned negligent, BUT ALSO so the passenger was b/c she was only wearing half of the seatbelt

• P failed to take reasonably prudent steps to avoid injury that could be caused by the D’s – it is a cause only that it contributes only to the extent of the injuries **see obiter – cap of 25% liability

(c) Voluntary Assumption of Risk
• Crts more reluctant to apply this, b/c leads to a complete reduction of damages and is a complete defence. D must establish on b of p that P knew of physical risks. • It is increasingly narrowed in Canada, and tends to be confined to specific situations, such as w/in the context of sports • in crocker, this defence was denied

• It is not enough to knowingly confront physical risks- the evidence must support the view that s/he agreed to take on the legal risk •
Contributory negligence is objective and VAR is subjective (not against a reasonable person test, but what did P know?) • agreement can be express or by necessary implication from the parties’ conduct

Apportionment for v.a.r.
• judges strongly prefer apportionment to an “all or nothing” result • apportionment is “a more flexible and more appropriate response in the great majority of cases” (SCC in Dube v. Labar 1986) • it is not a popular defence, except in written waivers… o it may be better to give judges autonomy to weigh this- particularly where D is grossly negligent, but it would likely have to come with a legislative issue.

Dube v. Labar (1986) SCC
Facts: co-workers engaged in heavy and prolonged drinking and end up in serious accident. P sues D and D raises the defence of voluntary assumption of risk Decision/Analysis/Ratio: D has to prove that P either expressly or implicitly agreed to be exempt from any injuries he may have suffered (has to prove essentially that P gave up right to claim by assuming the risk that there would be no compensation and that there was no DoC in that specific situation)—did P intentionally incur the WHOLE of the risk? in this case it was proven that the P took the whole risk. *bar is set very high – b/c it is a complete bar to recovery • Jury found that the defence has been made out at trial, and SCC does not disturb the jury’s findings, despite acknowledgment of that high level of attainment here, and also notes that this defence will not apply in most drunk-driving cases – why? b/c everyone is drunk so how can voluntary assumption of risk be made out b/c lack of understanding?

Voluntary Assumption of Risk and Sporting Events
**athletes – do they take a voluntary assumption of risk? Certainly physical conduct is not only allowed but also expected – thus what are the risks one assumes in a particular game? There are limits, b/c not accepting risk of ANYTHING and EVERYTHING that might occur **spectators – what risks do they assume?

(d) Illegality
• Like VAR, used sparingly, b/c it precludes recovery altogether • ex turpi causa non oritur action, means: no right of action arises from a base or immoral cause • after Hall v. Hebert, is of limited practical significance in personal injury actions in Canada

Hall v. Herbert (1993) SCC *defence of ex turpi is limited to cases where the P would profit from illegal conduct or evade the consequences of criminal sanction Facts: P and D, who had both been drinking, were in D’s car when it stalled. They tried a rolling start when P lost control of car. P had suffered significant head injuries. P’s action was based on D’s negligence in allowing P to drive D’s car despite the fact hat D knew P was impaired.

BCCA: invoked ex turpi; no recovery

SCC: not a case for ex turpi; P was contributory negligent; recovery reduced by 50%

Issue: whether and if so, in what circumstances, courts may prevent P from recovering compensation in tort for loss suffered by the fault of another on the ground that P’s conduct violated legal or moral rules? Decision/Analysis: appeal allowed with costs, as defence of ex turpi did not work b/c P had suffered compensable injuries. • breach of standard of care- do not pass keys to drunk person. There is a special relationship as owner of car. A reasonable person would make sure that P was not in driver’s seat. These are foreseeable injuries.

• Rule- defence of ex turpi (which is a complete defence)(Application- cannot apply it here, but recovery can be reduced based on contributory negligence. Ratio: Ex turpi should remain as a defense and not negate any of the elements of a tort claim. Does not negate a duty of care but P is simply barred from relying on it due to his own conduct. Onus of establishing exceptional circumstances rests with D. • The point is not to allow someone to profit from illegal act. Illegality is only a defence when recovery would shock the conscience of reasonable right-thinking members of the community (e.g., where one seeks to profit from illegality). Obiter: Sopinka dissented- felt there was no relationship to impose a duty of care AND policy of where P does not reasonably expected that D owed him a duty of care, duty should not be imposed on D. Cory J rejected 3 justifications put forward to support defence’s application to tort: 1. P should not entitled to profit from P’s own wrong

2. the use of doctrine would allow tort law to reinforce criminal law 3. defence is necessary for integrity of the justice system

**ex turpi after Hall(The role of defence limited to:

preventing P from profiting from illegal conduct (e.g. no award for punitive damages)

preventing P from evading the consequences of a criminal sanction (e.g. no award to compensate for fines imposed or lost income while in jail)

(8) Negligent Misrepresentation
(a) NM Causing Pure Economic Loss
• NM causing pure economic loss occurs when there is a special DoC, dealing with respect to written and oral communications and may involve interrelated liability in both torts and contracts concurrently i.e. inaccurate/incomplete info provided by financial advisor, lawyer, stockbroker and banker • Crts have drawn a distinction b/w words and actions, b/c ppl are more lose with their words and have a certain volatility to them – a real concern “words are more volatile than deeds” – and this can lead to the judicial concern that recognition of a DoC with respect to negligent misrepresentation (NM) can lead to “liability in an intermediate amount of indeterminate time to an indeterminate class” • Awarding injured P though NM must be balanced against the desirability of limiting the potential scope of liability

• In this case, it is usually limited to cases of pure economic loss – the nature of the P’s loss can be distinguishes usually by physical injury v. pure economic loss: crts willing to use basic neighbour principle for scope of physical injury, whereas with economic loss, a more restrictive view is taken • Traditionally, the crts refused to recognize a DoC in circumstances of NM resulting in economic loss, and the P would have to prove breach of fiduciary duty, a breach of contract, or deceit.

Hercules Management Ltd v. Ernst & Young (1997) S.C.C. *before Cooper – who will not see any reference to policy consideration in the first stage of the Anns test **the DoC of auditors Facts: Claim brought about by shareholders of a company that went under for pure economic loss – and claim is against the auditors who had been careless in preparing the financial statements, which has resulted in loss by the negligence (*why auditors? Company is down so they are looking for some D that has money to sue). Two claims: they (1) relied on statements, and (2) they would have acted diff if they had know the truth and averted financial ruin Issue: Was DoC owed?

Decision/Analysis: Held. The appeal should be dismissed. S.C.C. applied the Anns test to determine whether a DoC was owed – thus the test is (a) whether a prima facie DoC is owed (sufficient relationship of proximity) and (b) whether that duty, if exists, is negated or limited by policy considerations • Prima facie DoC

o Proximity: Reasonable foreseeability/reasonable reliance test – in cases of NM, the relationship b/w P and D arises through reliance by the P and the D’s words, and there is two criteria for relationship of reliance: (a) the D ought reasonably to foresee that the P will rely on representation and (b) reliance by the P would be considered reasonable (*nt – not willing to add that the D knew the identity of the P and the use to which the statements at issue are put here…rather, thinks these should fall into policy considerations section) ▪ Test of forseeability and reliance is satisfied here – With auditors, it is reasonable to assume that reports will be relied on • Policy Considerations

o The problem with NM is D might be exposed to liability in a indeterminate amount for an indeterminate time to an indeterminate class ▪ Imposing broad duties of care on auditors would give rise to significant economic and social benefits in so far as the spectre of tort liability would act as an incentive to auditor’s to produce accurate reports, but this benefit is outweighed by the socially undesirable consequences to which the imposition of indeterminate liability on auditors might lead o Thus, in the general run of auditor’s cases, concerns over indeterminate liability will serve to negate a prima facie DoC – WITH EXCEPTIONS, b/c where indeterminate liability can be shown not be a concern on the facts of a particular case, a DoC will be found to exist Ratio: In NM claims for pure economic loss, there are thus two criteria to be mindful of when thinking abotut reliance: (1) reasonable foreseeability and (2) was reliance reasonable in the circumstances, and (3) if there are policy reasons to negate DoC if found. **Nt – the recognition of a DoC in misrepresentation cases often improperly allows a P to “unilaterally appropriate” the services of the D in so far as the P is entitled to compensation if the D’s negligent statements cause pure economic loss…thus, recognition of DoC should be carefully confined to circumstances in which the D voluntarily assumed resp toward the P(assumption of responsibility can serve role of justifying a DoC

(c) NM and Contract
(i) Concurrent Liability in Tort and Contract
• Concurrent liability: can the D incur liability in both K and tort on the basis of essentially the same event? While there is no possibility of double recovery, the P may see some advantage to suing in tort, rather than K • Another issue is determining the extent to which the terms of a K may nevertheless oust or negate a DoC that would otherwise arise in negligence

• Finally, there is the q of whether or not negligence principles should be allowed to operate with respect to the period of negotiation that precedes the formation of a K

BG Checo International Ltd. V. B.C. Hydro and Power Authority (1993) S.C.C. *concurrent liability – need to look at K to determine whether the parties intended to limit the ability to sue in tort (express terms in the K or implied) Facts: D called for tender bids. P’s representative inspected the area before it submitted its tender in which it was noted that some clearing still needed to occur, which D said it would do. D accepts P’s tender and entered into a written contract, in which it was stated that the clearing would be taken care of, and it also stated that it was P’s resp to inform itself of all aspects of the work and that if there were any errors in the tender docs, it was on them to receive clarification before submitting its tender. It also stated that P satisfy itself of all site conditions.

The clearing never took place, and caused number of probs in completing the work. Checo sued Hydro for NM and breach of K. Issue: what remedy should be available for pre-contractual representations made during the tendering process? More broadly – can a P who is in a K relationship with the D sue the D in tort if the duty relied upon by the P in tort is also made a contractual duty by an express term of a contract? Decision/Analysis: Held. Appeal Dismissed – qualification of damages for MN and breach of contract • It is established off the bat that Hydro is liable for breach of K. • Issue for analysis here is Checo’s claim in tort

o Does the K preclude Checo from suing in tort? The right to sue in tort is not taken away by the K, but the K may limit the scope of the tort duty or waive the right to sue in tort, may limit or negate tort liability Ratio: The party can sue in both, but not when the K indicates that the parties intended to limit or negative the right to sue in tort – based on the principle of primacy of private ordering…the right of ppl to arrange their affairs and assume risks in a diff was than would be done in tort *this is the dissenting opinion (BUT, crts are willing to take exception when tort duty contradicts the K)

(9) Recovery of Pure Economic Loss in Negligence
• Claims for pure economic loss are when there is not personal injury and not property damage suffered by the P, but is purely economic loss. The crts concerned with prob of potentially indeterminate liability, and also that the claims will be so complex and so much that it may overload the crts (foreseeable economic loss can extend and extend and extend).

Crts have allowed recovery when the damage was a foreseeable result of negligently caused injury to the P’s property **not problematic; until recently however, the crts would not allow economic loss alone, but now the crts have developed a diff approach • The SCC now extends a more liberal and sensitive approach to PEN, and there are 5 categories: a. NM

b. independent liability of statutory public authorities c. negligent performance of a service
d. negligent supply of shoddy goods or structures
e. relational economic loss
*these categories all deal with diff policy considerations

(a) New Categories of Pure Economic Loss
Winnipeg Condominium Corp. No. 36 v. Bird Construction (1995) S.C.C. *falls into classification of negligent supply of shoddy goods or structures Facts: land developed contracted with respondent to construct an apartment building – some yrs later the building became a condominium when the appellant became the registered owner of the land and building. Appellant’s directors concerned over masonary work and was told it was structurally sound, and 7 years later, building collapsed and it was revealed that there were structural defeats in the masonry work. Appellant brought action against a number of parties, including the respondent. Issue: may a general contractor responsible for the construction of a building be held tortiously liable for negligence to a subsequent purchaser of the building, who is not in contractual privity with the contractor, for the cost of repairing defects in the building arising out of negligence in its construction? Decision/Analysis: Held. Appeal allowed. Bird is found liable in tort to the condominium corp. for the costs of repairing defeacts. • Dealing with recoverability in tort for economic loss

• This case falls w/in the fourth category (negligent supply of shoddy structure), although subject to and important caveat, b/c it was not only shoddy, it was dangerous o This is important, b/c the crt wants to treat more severally those negligences that result in danger as of those that are shoddy o A contractor who negligently constructs building, where danger is posed, are liable for costs of putting building back into a non-dangerous state – this is b/c of the reasonable SoC

• DoC(Was there a sufficient close relationship b/w the parties? o It is reasonable foreseeable to contractors tat if they construct a building negligently and that building contains defects as a result, subsequent purchasers of the building may suffer injury – here a lack of contractual privity does not make potential for injury any less foreseeable o Also, the likelihood that it would cause injury is also sufficient to ground a contractor’s duty in tort to subsequent purchasers o There are strong policy considerations advocating liability in these cases – preventative ▪ Are there any considerations that ought to negate the scope of the duty and the class of persons to whom it is owed or the damages to which a breach may give rise?

▪ caveat emptor doctrine not appropriate for our new housing market…contractors and builders b/c of K, skill and expertise are in a much better position to ensure structural integrity of buildings. The imposition of liability provides important incentive to take care

▪ who should bear the risk – who is best placed to avoid and bear it? AND still left with the prob of who should bear the risk when the defeat is not enough to risk danger… Ratio: DoC can extend when negligence results in shoddy structure, and DoC extends to builder and subsequent user (no privy of K), but arises in specific circumstances when it is reasonably forseeable that a defeat in construction poses a risk of danger to the inhabitants.

(b) Relational Economic Loss
• The most difficult pure economic loss cases are those involving “relational economic losses”. This occurs in situations where the D, as a result of negligently damaging property belonging to a 3rd party, also causes a pure economic loss to the P w/whom them 3rd party shared a relationship

• The concern here is that c rts have to balance b/w allowing P to recover compensation and from protecting D from the prospect of crushing liability

Bow Valley Husky (Bermuda) Shipbuilding Ltd. v. St John Shipbuilding Ltd. (1997) S.C.R. *contractal relational economic loss – presumption of no recovery – has to convince crt this claim should be allowed Facts:


BVHB – joint venture of BVI & BVHB, and owns right (choose the system of Rachem)

BVHB contracts a rig to be built by SJSL. The two others have a K with BVHB to use the rig – which includes a day rate payable even if the rig is out of service. A fire is caused by a faulty system installed by Raychem. BVHB is suing for cost of repair and lost revenues. HOOL and BVI are suing for the day rates (tort claim for relational economic loss). Decision/Analysis: Manufacturers have a duty to warn, even if there is no direct K, as long as the user is reasonably foreseeable • DoC(In these circumstance, Raychem owed a duty to warn BVHB o But there are clauses that limit this duty

• What about contractual relational economic loss? (i.e. HOOL/BVI and Raychem) o This is seen as less worthy of personal injury and property o Notion of indeterminacy
o Want to discourage multiplicity of law suite
o So when will suits actually be allowed?
▪ Maj is saying that with respect to claims for contractual relational economic loss, start with a general exclusionary rule (not recoverable unless there is a special circumstance where approrpatiate situations are met) – 3 categories thus far: • Where the P has possessor/proprietior interest • Joint venture

• Cases of general averaging
*this case does not fall into these 3 categories – so should it be recognized? o Despite degree of indeterminate liability, the P did not have opportunity to negotiate to allocate the risk (i.e. inequality of bargaining power) • If you are going to recognize a new category of contractual relational economic loss and must be required by justice – and goes back to the Anns analysis in order to determine whether a DoC was owed: (1) was relationship of proximity, (2) there are policy considerations that would negate the prima facie DoC, especially indeterminate liability…but are there any counter considerations? Well – what about deterrence? But this is not enough b/c economic investment seems to be enough to deter o In the final result, HOOL/BVI fail in their action in negligence o BVHB failed in action of negligence against SJSB, but did succeed ins action of negligence against Raychem (but damages reduced by 40% b/c of BVHB contributory negligence with respect of decision to use and failure to make sure it was properly installed) Significance: judges are now on same page as to analysis of these types of claims – it is a difficult claim to deal with, BUT there are some exceptions and are not closed

Martel Building Ltd. v. Canada (2000) SCC *general rule: no duty to bargain in good faith Facts: Leasor thought the govt would re-lease their space, retrofitting costs made the leasor too expensive. The D government department, was a major tenant of P, Martel. The lease contained an option for renewal. Prior to the expiration of the lease, M expressed its desire to renew the lease. Defendant intended to call for tenders but at the same time directed one of its officers to contact M in regard to M’s proposed renewal rate. The officer failed to do that. A discussion meeting was finally held between the parties. M viewed this meeting as the commencement of the negotiations. Meanwhile, the tender process was in progress.

A report prepared as the first step of the tender process recommended the lease renewal. M inferred from a second meeting that the lease would be renewed if he made an offer at a particular rental rate. M agreed to the suggested rate but failed to settle certain other terms on the same day. Its offer was rejected. M also submitted its tender and its bid was the lowest of all bids. The tender was finally awarded to a competitor. Issue: whether the tort of negligence should extend to commercial negotiations arising out of the conduct of pre-contractual negotiations and whether defendant had breached its duty to treat M’s bid fairly and equally in the tender process Decision/Analysis: Appeal allowed, action dismissed.

• SCC applies Anns test(the pre-existing lease arrangement and the communications between the parties in furtherance of the lease renewal necessarily gave rise to a prima facie duty of care on the part of defendant (sufficient close relationship of proximity). However, several policy reasons militated against extending the tort of negligence to commercial negotiations.

1. the goal of negotiations was to make financial gains at the expense of the other negotiating party. 2. the advantageous bargaining positions allowed in negotiations were required for certain socially and economically social conduct.

3. tort law should not serve as after-the-fact insurance against the risk of failed negotiations. 4. the court should not assume a significant regulatory function on commercial parties when remedies were available through other causes of action.

5. needless litigation should be discouraged.

• Under the terms of the tender, defendant was allowed wide latitude to evaluate the bids. Defendant had treated all bids fairly except that it failed to add consistently the costs of the security system, which plaintiff had included in its bid, to other bids. Yet, if that had been taken into account, the competitor’s bid was a better one. Accordingly, defendant had properly exercised its discretion • Court: “there is no tort for liability for negligence in commercial negotiations.” o “it would defeat the essence of negotiation and hobble the marketplace…” – if don’t go ahead and allow hard bargaining o that full disclosure would “dissipate any competitive advantage” o the primary goal of any economically rat’l actor engaged in commercial negotiation is to achieve the most advantageous financial bargain Ratio: Several policy reasons militated against extending the tort of negligence to commercial negotiations. **with respect to the tendering process, there is not a DoC in tort…the claim of breach of K nor a claim for negligence would succeed

(10) BATTERY, ASSAULT AND THE INTENTIONAL INFLICTION OF MENTAL SUFFERING (a) Introduction: Volition, Intent, Motive, Mistake, Accident

(b) Battery and the Defence of Consent
A direct, intentional and physical interference with the person of another that is either harmful or offensive to a reasonable person is a battery. The tort recognizes a person’s right to bodily integrity and personal security. Freedom from physical interference is so highly valued that battery is actionable without proof of damage.

Bettel et al. v. Yim (1978) Ont.
Facts: Kids throwing matches into the store, which hits coal and causes a fire. Store owner grabs the kids to make him confess, kid is injured. Issue: can an intentional wrong-doer be held liable for consequences he did not intend? (aka should the D bear liability for only the reasonably foreseeable consequences, or rather all that flow from his actions?) Decision: Intending the ultimate consequence does not matter (not intending to cause the harm does not matter). Grabbing and shaking was battery in itself even if the injury to the nose was not. D is seen to have caused all the consequences. Policy reason is that we do not want to let someone limit their responsibility since we want to protect people from harmful interference. • once the P proves that he was injured by the direct act of the D (not necessary that the D caused bodily harm), the D is entitled to judgment only “if he satisfies the onus of establishing the absence of both intention and negligence on his part.” o But D is arguing that it was an accident

▪ But you still need to prove lack of intent and lack of negligence • concept of foreseeability as defined by law of negligence is a concept that ought not be imported into the field of intentional torts ( it is the dignitary interest, the right of the P to insist that the D keep his hands to himself • logical test is whether the D was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and a more serous harm befalls the P than was intended, the D, and not the innocent P, must bear the responsibility for the unintended result Ratio: the D must only intend the contact (intending the harm does not matter). The D’s liability in battery is not restricted, as it is in negligence, to the foreseeable consequences of his act. The broader rule of remoteness of damage, which is probably applicable to all of the intentional torts, is justified on the ground that the D’s conduct, being intentional, carries the stain of moral culpability, which warrants a more extensive responsibility.

**Nt – a battery has to be a positive act which causes a physical injury i.e. blocking another’s path will not constitute a battery

Norberg v. Wynrib (1992) S.C.C.
Facts: Sex for drugs arrangement(P drug user. When she went to the D, a doctor, who realised she was addicted, he offered her drugs in return for sexual favors. P claiming sexual assault, negligence, breach of fudiciary duty and breach of contract. Unsuccesfully in her claim up until the S.C.C. Issue: Did this arrangement constitute a battery, i.e. was there a lack of consent? Decision: Yes. Maj find liability on the charge of battery.

• Consent has to be chosen freely and w/out constraints or position of relative weakness. • The justice factors seen in K law can be applied here to the issue of consent o Sometimes, for policy reasons the crt will negate the defence of consent, when the weaker party could not choose freely (power-dependency relationship) • Consent is compromised where there is an inequality of the parties and proof of exploitation. A doctor-patient relationship is going to be unequal, age and education (she was uneducated) increase the inequality.

There was exploitation since he initiated it. • “A man cannot be said to be ‘willing’ unless he is in a position to choose freely; and freedom of choice predicates the absence from his mind of any feeling of constraint interfering with the freedom of his will.” • A position of relative weakness can interfere with the freedom of a person’s will – notion of consent must incorporate power relationship b/w parties • “power dependency” relationships ( parent-child, psychotherapist-patient, physician-patient, clergy-penitant, professor-student, attorney-client, employer-employee, teacher-student • 2 step process to determine legally effective consent to a sexual assault 1) proof of an inequality within context of power dependency rel’ship 2) proof of exploitation

a. whether transaction is sufficiently divergent from community standards of commercial morality that it should be rescinded Ratio: Consent as a defence to a battery suit will fail where there is evidence of exploitation or inequality of power.

Non-Marine Underwriters, Lloyd’s of Lond v. Scalera (2000) S.C.C. Facts: Scalera had sexual relations with young girl, and she claims battery b/c
they were not consensual Issue: Should the crts depart from the settled rule of trespass as a rights-based tort? Decision/Analysis: Yes.

• proposition from Cook v. Lewis – where a P is injured by force applied directly to him by the D his case is made by proving this fact and the onus fall upon the D to prove that such a trespass was utterly w/out fault o this proposition holds for particular forms of medical battery and sexual battery • Consent, express or implied, is a defence to battery, BUT…should we depart from the settled rule that requires that the P case only needs to show direct contact and the onus shifts then onto the D to prove consent? NO! • Need to maintain the trad BoP in sexual battery and should not be taken into a diff category than that of battery o All P has to prove is harmful contact

• We should base the law of battery on protecting the P’s physical autonomy for a number of reasons: o Deals with direct interferences, so not complicated like say negligence o Practical purpose b/c shifting the onus helps to smoke out evidence possessed by the D’s, in order to get a fuller pic of the facts and a more objective idea o Dealing with high “demorolization costs”

Ratio: sexual touching itself constitutes violation and is “offensive” – no requirement to show that consent wasn’t given in order to show ‘offensive’ o if we were to require more, would focus on P, victim-blaming o onus shifts to D to prove consent – consent is in D’s mind

**The damages from battery are recoverable…NOT limited to reasonable foreseeability **Punitive damages are allowed here (even though for other torts they are rare) **also seen as therapeutic jurisprudence

• but – hesitant…crts are not gentle places, defend strongly • not likely it is bound to a positive part of the victim’s healing process

(c) Assault
• The word assault is used to describe what in tort law is a battery.
Strcily speaking, however, an assault in tort law is the threat of an immediate battery. Any direct and inteitonal act that casues a person to apprehend immediate harmful or offensive bodily contact is an assault i.e. pointing a gun at someone and threatening to shoot. *only when the person is shot is there a battery completing the couplet “assault and battery”. Assault and battery are, however, indepndent causes of action. Where a D does not execute a threat of imminent contact, there is an assault but no battery. Where the D comes to the P from behind and surprises, the is not assult b/c there was no anticipation of the battery. • trad, conditional threats, future threats and words alone w/out an overt act could not be seen to constitute assault, BUT(crts have reconsidered and focus now on impression created in the P’s mind

Holcombe v. Whitaker (1975) Ala. S.C.
Facts: “If you take me to court, I will kill you.” – said it again after trying to pry open door. D claims merely a conditional threat of violence and b/c no overt act was involved, not assault Issue: conditional threat and therefore not an assault?

Decision/Analysis: No, it was assault.
• Words were used as a threat of harmful or offensive assault • evidence she felt imminent threat, asked for friends to stay at her place afterwards Ratio: A conditional threat such as the one from the D in this case stands as an assault, as it is intended to create an apprehension of immediate violence. A threat of violence coupled with a condition that the speaker has no right to impose, and compliance with which is essential to purchase one’s safety, is an assault. The D has no right in a conditional threat to require the P to buy her safety by giving such an assurance.

Police v. Greaves (1964) C.A.
Facts: “Don’t you bloody move. You come a step closer and you will get this [knife] straight through your ___ guts.” – “Get off this ___ property before you get this in your guts.” On appeal, conviction quashed b/c considered conditional threat Issue: only a conditional threat?

Decision/Analysis: Assault. There is no reason why a conditional threat should not constitute an assault. A threat in its very nature usually provides the person threatened with an alternative Ratio: To establish the claim of assault, requirements are: (1) threat to apply force (2) that P believed, (3) on reasonable grounds, (4) that D would carry out that threat **Nt – usually words alone are not enough, but there are some limited situations where words alone may be enough if they cause apprehension of imminent physical contact **Nt – generally, future threats cannot constitute an assault b/c of need for immediacy, but again there are some exceptions **Nt – even if conduct/words cannot find w/in the requirements of one type of tort, they can fall into the defn of another type i.e. fraud, etc.

(d) The Intentional Infliction of Nervous Shock
There are 3 elements to the tort of intentional infliction of NS. First, there must be an outrageous or extreme conduct coupled with an actual or constructive intent to cause a sever impact on the P’s psychological well-being. Second, the P must prove NS, which is defined in the tort of negligence as a recognizable psychiatric illness or physical harm (anguish and grief will not do). Third, the P must not have a particular predisposition or susceptibility to shock *but this element is receiving less emphasis today and unless there is compelling evidence to the contrary, the P will be assumed to be of average mental sturdiness.

Wilkinson v. Downton (1897, UK) * first case to recognize and formalize the tort of infliction of nervous shock Facts: Prankster tells wife her husband has got into an accident and was severely injured. As a result she suffers severe mental and physical injuries. • effect of statement was a violent shock – no evidence of poor health, predisposition to shock • there was no category that this could fit into – so effectively the judge creates this new tort Issue: Is the D liable for intentionally causing the P’s injury?

• whether the D’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the D Decision: Yes. The P’s reaction was normal under the circumstances. He wilfully did an act calculated to cause physical harm to the P, violating her right to personal security (mental security). There was no reason for this. • difficult to imagine such a statement could fail to produce grave effects – substantially certain that harm/injury would result • no concerned with the motive

• is it too remote??
Ratio: Only need to prove that D had the intent. Intent is wilfully doing an act intended to cause physical harm. So as long as the person intended the conduct that caused the harm and a reasonable person would have foreseen the harm done then the D is imputed to have meant to cause the harm. ( judgment was for P for all costs associated (shock + costs of going to get husband) Significance: Prior to Wilkinson, P could not recover for nervous shock unless he also suffered some physical injury

Radovskis v. Tomm (1957) Man. Q.B *showcasing the importance of evidence to prove NS Facts: infant P raped by D. Action brought by father for trespass to P, own costs, mother’s nervous shock Decision/Analysis: mother’s action is dismissed w/out costs • type of phsycial harm not apparent here

• no medical evidence given for mother’s nervous shock, therefore not sufficient to support claim ( no visible and provable illness

Samms v. Eccles (1961) Utah S.C. *another view of the harm that will be needed to ground a sufficient claim Facts: severe emotional distress P claims to have suffered b/c D persistently annoyed her with indecent proposals. P suffered great anxiety, fear for personal safety, emotional distress Decision/Analysis/Ratio: Trial ct erred in dismissing the action.

• The Test: an action for severe emotional distress, though not accompanied by bodily impact or physical injury, where D intentionally engaged in some conduct toward the P: a) with the purpose of inflicting emotional distress b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality

• that some claims may be spurious should not prevent the administration of justice – function of juries, judges to determine whether claims are valid or false *Cdn, English courts have required P to prove either actual physical harm or some serious psychological illness to recover for nervous shock **Courts have identified 3 difficulties with claims for nervous shock:

▪ concern with false, trivial and numerous actions ▪ concern that socially-acceptable conduct might cause some sensitive individuals mental distress ▪ difficulty in assessing damages for mental distress in absence of physical injury ***Difference b/w negligent and intentional infliction of psychiatric harm: o Burden of proof diff. – P shows less in intentional o Negligence action restricts who can bring action (relational, temporal, locational… requirements) vs. more broad non-relational – no limitations

Bell-Ginsburg v. Ginsburg (1993) Ont. Ct. Gen. Div.
Facts: P alleged that D engaged in a number of high-risk sexual activities that have exposed him, and her, to risk of infection of HIV Decision/Analysis: trial judge acknowledged law is in “an unsettled state”, but it may be that liability could attach “if the emotional effects of the D’s conduct were (a) direct and immediate, and (b) intended or foreseeable or a probable consequence.”

(e) The Common Law Tort of Discrimination

Bhadauria v. Bd. of Gov. of Seneca College (1979) Ont. C.A.
Facts: P complains that she has been discriminated against based on ethnic origin – didn’t receive any interviews for the positions she was qualified for Issue: Does this give rise to a claim in tort?

• Finds a common law action for discrimination (says its within the boundaries of the existing HR code to sue in tort) • no doubt that interests of persons of different ethnic origins entitled to protection of law – Ontario Human Rights Code s. 4 • appropriate that these rights receive full protection of common law – Code doesn’t create fundamental human right, nor does it contain any expression of legislative intention to exclude common law remedy o while no authority has cites the crts to recognize a tort of discrimination, none has repudiated such a tort

Bhadauria v. Bd. of Gov. of Seneca College rev’d (1981) S.C.C • Rejects this approach
• Says that there is a mechanism for remedies under the HR code (tribunals) – and therefore the P must take action that way • Because this tribunal system has been put in place to resolve claims within the statutory provision (the HR code), it has precluded the common law remedies in tort, and must bring her action under the HR code

• Therefore, if claim falls under statute (such as employment discrimination), then you can’t bring an action in common law tort • common law remedy excluded by legislative initiative which overtook the existing common law and established a different regime which doesn’t exclude Courts but rather makes them part of the enforcement machinery under the Code • Code itself has laid out procedures for vindication, and procedures which P did not see fit to use

(a) Human Rights Code s. 7, 10

Sexual harassment
Harassment because of sex in accommodation
7.  (1)  Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building.  R.S.O. 1990, c. H.19, s. 7 (1).

Harassment because of sex in workplaces
(2)  Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.  R.S.O. 1990, c. H.19, s. 7 (2).

Sexual solicitation by a person in position to confer benefit, etc.       (3)  Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.  R.S.O. 1990, c. H.19, s. 7 (3).

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; (“harcèlement”)

**Nt – in a number of recent cases women have successfully employed intentional tort theories to recover damages from the crts for sexual harassment in the workplace. There is no common law tort of discrimination, although many have tried to fit their facts into existing torts to get around this issue (Boothman v. Canada, Clark v. Canada) – these two claims were successful b/c they brought their actions in other pre-existing tort claims and not discrimination

Boothman v. Canada (1993) – the P was awarded $40,000 ($10,000 in punitive) b/c of verbal and physical abuse fro her supervisor. The crt held these facts constituted assault and the intentional infliction of emotional distress.

Clark v. Canada (1994) – P sexually harassed by her supervisors in the RCMP. The crt found the D liable for negligence in his supervision. The crt also followed the decision in Boothman and found that harassment in this case constituted the tort of intentional infliction of emotional distress or NS.

Crts in other jurisdictions have dismissed claims for damages based on sexual harassment per se on the grounds that these claims disclose no civil cause of action, but rather fall under the exclusive jurisdiction of the HR commission since sexual harassment is a form of discrimination prohibited by
the HR leg, and cite the case of Bhadauria to support the concl.

However, sexual harassment that also constitutes an existing, recognized tort gives rise to a cl cause of action based on that existing tort. Crts have distinguished the Bhaudaaura decision since this case involved an attempt to use HR leg to establish a new tort. Although the SCC foreclosed the dev of a new tort of discrimination, its ruling does not support the proposition that HR leg should be interpreted as subsuming already existing tort remedies such as battery and the intentional infliction of emotional distress.

Several crts express frustration with this state of things, and think the law should evolve to recognize new tort of sexual harassment, and should not be stifled by the HR leg (TD v. Runte (96), Chaychuk v. Best Cleaners (95)).

**in Manitoba, damages were awarded for sexual harassment as a distinct tort, b/c the HR commission does not have exclusive jurisdiction on Manitoba Lajoie v. Kelly.

(a) General Principles
• DoC(a physcian is under a DoC both to answer the patient’s qs and to volunteer info about health and treatment options, in an honest, clear and frank manner. The extend and detail of the info given is determined on a case-by-case basis by the application of the SoC • SoC(adopted by the S.C.C. in Reibl is the full disclosure standard. *contrasted with the professional standard that measures the D’s disclosure of info given against current prof custom and practice. The profession standard, which is the conventional way to judge the conduct of the physician, was rejected in Reibl on the grounds that it was controlled largely by the medical establishment and it might not protect suffieicently the patient’s right to be informed. All materially risks (low risk with serious consequence included) is the requirement to be disclosed, not ALL. This standard is tailored to each patient, taking into account lifestyle. • Causation(it must be proved that the patient would not have consented to the procedure if the D physician had performed his duty to inform the patient of the material
risks to the patient. The test is the modified objective test, but the crts have allowed for so many other factors to come into play that is might as well be equated with a subjective test.

As a general rule, a health care professional/counsellor must obtain consent to initiate any physical examination, test, procedure, surgery, or counselling o should be obtained in advance and cover not only the intervention, but also any related issues o consent must relate to specific procedure/treatment o if patient competent to give consent, only his alone that is required o where next-of-kin, only relevant if patient incapable o to be valid – consent must be given ‘voluntarily’ o consent must be based on full and frank disclosure of nature of intervention, and its risks (the Health Care Consent Act, 1996 specifies info. health professionals must provide • It is now clear in the law that a battery claim would apply in the context of a medical treatment either: 1. where patient did not consent at all

2. terms of consent had been exceeded
3. when the consent had been obtained fraudulently
• It is not battery once the patient is aware of the general nature of the proposed treatment and consents to it • Therefore, MOST OF THE TIME, failure to obtain informed consent of patient will be a negligence claim, not battery • Courts will relax these battery claims in an emergency (if they can’t get patients consent), or the consent extends to/covers necessary procedures

(b) Exceptions to the General Rule:
Courts have relaxed strict requirements of consent in three circumstances: 1. an unforeseen medical emergency, where it is impossible to obtain consent, allowed to intervene to preserve patient’s health or life (Marshall v. Curry) 2. when patients give a general consent to a course of counselling, a treatment program or an operation – implicitly consenting to any subsequent counselling sessions or subordinate tests and procedures that are necessarily incidental to agree treatment – BUT negated if patient objects 3. therapeutic privilege – health care professionals have
right to withhold info if its disclosure would undermine patient’s morale and discourage him from having needed medical treatment – subsequent cases either rejected, or narrowed scope/application i.e. Pittman Estate – therapeutic w/holding of info justified only if physician has taken “reasonable precautions to ensure that the patient has communicated their desire not to be told, or that the patient’s health is so precarious that such new will undoubtedly

Marshall v. Curry (1933) N.S. S.C.
Facts: Dr. removed P’s testicle during course of hernia operation, without knowledge/consent Issue: was the consent exceeded?
Decision/Analysis: Doctor is not liable
• in situation where unforeseen medical emergency arises, the Doctor has a duty to save life of patient, which is overridden by the establishment of patient’s consent • in removing testicle, acted in interest of patient and for protection of his health/life Ratio: where situation of emergency arises which could not be anticipated, better to remove consent and to rule that it is the surgeon’s duty to act in order to save the life or preserve the health of the patient: and that in the honest execution of that duty he should not be exposed to legal liability – put a surgeon’s justification on the higher ground of duty (Principles of Consent:

• Can be express or implied, but not if consent had been refused • Does not extend beyond what is necessary for the procedure • In an emergency situation, we do not consider consent per se, but the doctor’s duty to protect the patient’s health

Malette v. Shulman (1987) H.C.
Facts: card in wallet signed by P, who was injured in car accident, saying she was a Jehovah’s Witness and was not to be given blood under any circumstances. P’s daughter confirmed, ordered transfusions to stop – Dr. only stopped when condition stabilized. Issue: Does this constitute battery?

Decision/Analysis: C.A. affirmed trial judgment that dr had no reason to doubt validity of instructions on the card and was found liable. • First
Ontario case recognizing instructions on a card as refusal of consent • This is now statutory (look at Health Care Consent Act) o Note that paragraph 2 extends this requirement to other medical practitioners, not just doctors • But keep in mind, her damages for battery were limited, mainly because she did not suffer any physical damages • Dr.’s doubt about the validity of the card, although honest, was not rationally founded on evidence before him ( claimed doubts as: • right to refuse treatment is an inherent component of the supremacy of the patient’s right over his own body ▪ current intent (maybe not up-to-date info) ▪ inherent frailities – signed out of peer pressure, etc. ▪ instruction applied to present life-threatening circumstances ▪ if P was fully informed of decision at time of signing • right to refuse treatment is an inherent component of the supremacy of the patient’s right over his own body • doctrine of informed consent does not extend to informed refusal (argued no opportunity to fulfill duty to inform, thus suspect of potential influences in signing) Ratio: central to the notion of informed consent is that the patient has a supreme right to decide their own treatment, and when there is no opportunity for informed consent, informed refusal stands

Competency to Consent
( Common law test of competency focuses on patient’s ability to understand the nature of the proposed treatment and its risks, not her ability to make a reasoned or prudent decision – this low thres-hold has to occur on a case-by-case basis ( No recognized age of consent for medical treatment ( assess whether patient/client is capable of understanding nature of proposed procedure and its risks o “mature minor” – determined by age, intelligence, maturity, degree of autonomy or dependence, complexity of proposed treatment o several provincial statutes that set minimum age

C. v. Wren (1986) Alta. C.A.
Facts: 16 year-old girl pregnant, she left home, sought help from doctor to get abortion. Suit by parents against doctor Issue: did she have the capacity to consent?

• TJ found on evidence that child was capable of giving informed consent and had done so • Surgeon may proceed with a procedure immune from suits so long as they have informed consent from the patient • The REAL issue here is b/w parents and child and the parent’s dissaporval of abortion • concluded that she is a “normal intelligent 16 year old” – did have sufficient intelligence and understanding Ratio: if a minor below the age of 16 sufficiently achieves understanding and intelligence to enable them to understand fully what is proposed, as a matter of law they can choose their right to medical treatment **No common law age requirement/minimum for consent, at common law, the test is whether the patient or client has (1) ability to understand the nature of the decision that has to be made (alternatives, risks, etc.) and (2) the consequences have to be appreciated

**Re LDK (1985) Ont. Prov. Ct – court decides 12 year old girl was a mature minor, and could refuse cancer treatment for religious reasons – the fact that she did not have a very good chance of survival (even with chemo) played a role in the Court’s decision to allow her to refuse treatment **RE DUEK – 13 YEAR OLD BOY WANTED TO REFUSE CANCER TREATMENT, BUT PSYCHIATRIST TESTIFIED THAT BOY WAS VERY IMMATURE FOR HIS AGE AND ALSO COURT FOUND THAT BOY’S FATHER HAD BEEN FEEDING HIM FALSE INFORMATION. COURT THEREFORE ALLOWED MEDICAL TREATMENT TO PROCEED WITHOUT CONSENT FROM EITHER THE BOY OR HIS PARENTS

Arndt v. Smith (1997) S.C.C.
Facts: P exposed to chicken pox while pregnant – asks D of his risks, he does properly inform because the chances are very slim that the child would be born with neurological defects. Child born is born w/ severe neurological difficulties. P says she would have had an abortion had she known. TJ found that risk of serious injury was very small and medical advisors would have recommended against an abortion Issue: Should it be a Modified Objective Standard or Subjective Test? Decision/Analysis: Held that Dr. not liable for financial costs associated with birth defects • Must consider P’s reasonable beliefs, fears, desires, etc. but does not mean it’s a subjective test (Reibl) • Keep in mind that BC CA originally bought her
story that she would not have had the baby • But SCC looks at her desire to have a baby etc. and concluded that she would have gone ahead and had the baby anyway • Court says that subjectivity would allow for bitterness in 20/20 hindsight • Cory J. (majority) ( subjective std suffered from “gross defect” – hindsight, bitterness • modified objective test viewed objectively, but from patient’s particular circumstances – patient’s particular concerns must be reasonably based • evidence of reasonable fears/concerns taken into consideration as evidence which could go to establishing P’s subjective state of mind o purely subjective fears which are not related to the material risks should not be taken into account ▪ fears that are idiosyncratic

▪ do not relate directly to material risks of proposed treatment ▪ fears which would often be unknown to physician **often times these informed consent cases fail at this stage, because the Court often finds that the patient would have gone ahead with the treatment anyway McLaughlin agrees with result, but DISSENTS:

• Says that subjective standard should be implemented
• McLachlin (minority) ( “the objective test, based on the hypothetical reasonable person, depreciates the P’s personal choice in such situations and deprives her testimony of any weight.” – subjective approach suggested by fundamental principles of tort law Ratio: Modified Objective Standard is test for informed consent



R. in Right of Canada v. Sask. Wheatpool (1983) SCC
Facts: D delivered infested wheat, in violation of s. 86(c) of the Canada Grain Act (fed statute). The P sought damages solely on the D’s breach of this section of the act. The statute does not mention civil liability, if the requirement is breached. Therefore, wheat board sues the Sask. Wheat Pool for damages, solely on the breach of the statute (not for common law negligence)(a common law negligence claim would not have succeeded because there had not been any fault Issue: does the breach of this statutory duty give rise to a civil cause of action? • When D has breached a statutory duty causing injury to P, does P have a civil cause of action against D? and if so, is D’s liability absolute, in the sense that it exists independently of fault, or is D free from liability if failure to perform the duty is through no fault of his? Decision/Analysis: Decision for the D. The breach may be evidence of negligence, but it is not sufficient • Crt needs to choose b/w eng and u.s. way of dealing with this issue. o eng(emergence of a new tort of statutory breach, distinct from law of negligence, and 2 requirements for P to show are (i) breach of statue and (ii) damage caused by the breach o u.s.(civil consequences of breach of statue have been subsumed(included) into the law of negligence per se – in certain circumstances • The Canadian position(breach of statue, where it has an effect on civil liability, should be considered in the context of the general law of negligence (adopting u.s. approach) • Proposal of the crts:

1. Civil consequences of breach of statue should be subsumed in the law of negligence 2. The notion of a nominate tort of statutory breach giving a right to recovery merely on proof of breach and damages should be rejected, as should the view that unexcused breach constitutes negligence per se giving rise to absolute liability 3. Proof of statutory breach, causative of damages may be evidence of negligence 4. The statutory formulation of the duty may afford a specific, and useful standard of reasonable conduct **the court recognizes that in new tort law there needs to be an element of fault. And comment on
how if breach of statute leads to civil liability then they would be found guilty without fault

The Tort Liability of Public Authorities
• It used to be that governments could not be found negligent, BUT now they can, but they take on much greater responsibility so you can’t just treat the gov’t like any other person • Most govt’al activites and services are carried out under statutes, and this leg does not normally impose a duty to carry out certain tasks or services. It is written in the terms of what the gov’t may do, not on what it must do, so leg is empowering rather than mandatory, b/c the need and demand for gov’t services are infinite and the resources and money available to it are finite. There has been a refinment in the classification of the administrative functions of the gov’t in an effort to determine if they can be held liable to a private citizen in a neg claim. A disction has been made b/w the administrative functions that are essentially policy (which would normally not be subject to a private law DoC, as they are discretionary decisions made at a high level of govt, wighed against a whole bunch of social policy issues, and the remedy is in the ballot box, not the crts), and operational matters (which normally would be subject to a DoC). In due course, the policy decisions mentioned are implemented and govtal services are delivered to the public at an operational level. A private law DoC may be owed in the performance of these operational functions *it is often difficult to draw such a distinction as decisions and activities often include both. • Unless subject to express language/exemption by statute, the government can be held vicariously liable for the actions of its employee, even if it is the gov’t o The more difficult issue is with respect with its own statutes o you have to determine if it is a statutory duty or statutory power (SEE CHART)

Just v. British Columbia (1989) SCC
Facts: father and daughter driving up the whistler and stop on Hwy 99 b/c of snowfall induced traffic. Boulder from rockslide comes lose and crashes into the car, killing daughter and left father severely injured. Action being brought claiming that B.C. failed negligently to maintain the Hwy
properly. There were many dangerous factors in play re the safety of Hwy 99…in fact at the time of accident the dept of hwys had set up a system for inspection, led by Mr. Eastman. Issue: what approach should be taken when dealing with the liability of gov’t agencies in tort actions? • What is the extent of the gov’t liability? Did the government owe a duty of care because of the relationship of sufficient proximity Decision/Analysis: In the maj judgment, the judge did not change the conceptual framework for negligence, but he did suggest a much narrower interpretation of policy decisions by adopting the more restrictive term “true policy decisions” and by suggesting that policy decisions normally involve the broad allocation of funding at a high level of gov’t. The system of inspection that the province had implemented was open to judicial scrutiny as an operational matter. He noted however, that the manner and quality of the inspection system is clearly part of the operational aspect of a gov’tal activity and falls to be assessed in the consideration of the SoC issue. At this stage, the requisite SoC to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for e.g., budgetary restraints and the availaibility of qualified personnel and equipment. This judgment appeared to show a clear preference for a much wider judicial scrutiny of gov’tal action and a desire to rely on the flexibility of the SoC to avoid placing an undue burden on gov’t. BRIEF SUMMARY OF CHART:

Must consider if it is a statutory duty or power
o If no duty, no liability
o If power (i.e. discretional) must consider if policy or operational decision ▪ If policy, no negligence unless not in good faith ▪ If operational, in order for negligence must follow framework **once statutory power is decided to be operational then the court can test whether the steps taken were reasonable and reasonably carried out • CORY ends up concluded that this is an operational decision • Tension b/w worry that gov’t must be free to govern and make true policy decisions w/out giving rise to tort liability as a result of those decision, and b/w the fact that crown immunity should not be restored by having every gov’t decision designated as one of “policy” (difference b/w policy and operation • The duty of care should apply to
public authority unless there is a valid reason for its exclusion • In anns/kamloops we see that gov’t agency in reaching decision re inspection must do so in a reasonable manner which constitutes a bona fide exercise of discretion • Duty of care will apply to agency the same way as it applies to an ind with exemptions through either statutory exemption or from pure policy decisions i.e. budgetary concerns • Next, if DoC established, move to SoC, and must be assessed in light of all surrounding circumstances, such as budgetary restraints and availability of qualified persons • In case at bar, issue is whether the decisions of gov’t of B.C. were policy decisions exempting the gov’t from liability? o The negligent caring of hwy is NOT matter of policy exempting, but rather a matter of OPERATION, the gov’t is not immune from suit and new trial is ordered • Dissent:

o If you classify operational so broadly, then nothing will left to be considered policy and be immune o The only thing that would be left under policy would be the decision to actually inspect o argues that the policy is not open for attack, and holds that parliament is best to decide its exercise of powers o If the statute creates no duty to inspect at all, but simply confers a power to do so, it follows that a decision to inspect and the manner thereof are all discretionary powers of the authority o In order for a private DoC to arise, it would have to be shown that the Rockwork Section (delegated by gov’t) acted outside its delegated discretion to determine whether to inspect and the manner in which the inspection is to be made

• D can be held resp even though he did not breach any obligation at all and arises either under statue or from a relationship of agency **most instances arise out of employer/employee relationship **also note that this does not relieve the tortfeasor of liability i.e. there will be one who is vicariously liable and one that is personally liable

T.G. Bright & Co. v. Kerr (1939) SCC *principle/agent relationship – principle authorizes the agent to act on its behalf Facts: motorcycle
delivery driver was negligent
Issue: whether D wine dealer was vicariously liable for negligence of its motorcycle deliveryman? Decision/Analysis:
• Majority — concluded that while deliveryman was agent, he wasn’t D’s servant b/c D had no control over the precise manner in which task was performed • Dissent – Respondent Superior rule

o he who expects to derive advantage from an act which is done by another for him, must answer for any injury which a 3rd person may sustain from it – not unjust that he who has selected him and will have the benefit of his services if efficiently performed should bear the risk of his negligence in “matters incidental to the doing of the acts the performance of which has been delegated to him.” Ratio:


BAZELEY V. CURRY (1999) SCC *MASTER-SERVANT RELATIONSHIP W/IN EMPLOYMENT CONTEXT Facts: Children’s Aid Foundation employee sexually abused children in his care – authorized employees to act as parent figures for the children – charged them to care for the children physically, mentally and emotionally Issue: Does the employer’s enterprise create the risk that produced the tortious act? • Must be a meaningful connection – not just the but-for test Decision/Analysis: Children’s Aid is vicariously liable.

• Determination of whether act was w/in the scope of employment and vicarious liability of employers – Salmond test: o Was the act authorized?
o If an unauthorized act, was it so connected to an authorized act that it can be considered a mode (albeit improper)? *the case here is concerned with this second branch ▪ To determine if an act is a mode, must consider: • Unambigious precedents

▪ Three general categories: • furtherance of employer’s aim • friction (ex. Drunk bartender’s behaviour) • employee theft or fraud (trend of holding employers liable) • If none, (*which in this case there was not) whether vicarious liability should be imposed based on broader rationales behind vicarious liability ▪ provision of a just and practical remedy for the harm ▪ deterrence of future harm i.e. employer is in the best position to take steps to safeguard against this kind of harm or wrong doing) • Thus, courts should be guided by following principles: ▪ openly confront question of whether liability should lie against employer ▪ whether the wrongful act is sufficiently related to conduct authorized – where there is a significant connection b/w the creation or enhancement of a risk ▪ in determining sufficiency of connection, subsidiary factors can be considered: • opportunity enterprise afforded employee to abuse power • extent to which wrongful act furthered employer’s aims • extent to which wrongful act was related to friction, confrontation or intimacy inherent in employer’s enterprise • extent of power conferred on employee • vulnerability of potential victims to wrongful exercise of employee’s power • In summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprises and empowerment of the employee materially enhance the risk of sexual assault and hence the harm, but also with considerations of policy. • no exception for non-profit orgs ( “suggestion that the victim must remain remediless for the greater good smacks of crass and unsubstantiated utilitarianism” – neither alt. attractive, but fairer to place loss on one who introduced risk and had better opportunity to control it Ratio: Non-profit agent vicariously liable for sexual assault – opportunity for intimate control, parental relationship and power created special environment – abuse was not a mere accident, but the product of special relationship, as well as the special opportunities

Jacobi v. Griffiths (1999) SCC *compared against Bazeley
4-3 held Boys’ and Girls’ club not vicariously liable for same situation • Maj: test of close connection should be applied with serious rigor o shouldn’t go after ‘deep pockets’
o vicarious liability not applied to those employers who provided opportunity alone o expansion of principle could spell end of recreational and non-profit orgs. o “Griffith had no job-created authority to insinuate himself into the intimate lives of these children” • Dissent: “it was his fostering of trust at the Club, flowing from the requirement of his employment that he forge bonds of intimacy and respect, that enabled him to commit his despicable acts.” o Strong dissent (4-3 decision), they argued that the trust relationship w/ the children was sufficient

67112 Ontario ltd. v. Sagaz (2001) SCC *independent contractors – an employer will not be held vicariously liable for torts committed by an independent contractor Facts: P manufactured car seat covers that sold business through Canadian Tire. D company in a bid to take out competition, hired a marketing company to boost sales, who in turn bribed a Canadian Tire official in order to sells D’s goods with the retailer. The loss of business to the P was devastating. Issue: is the D vicariously liable for the torts of conspiracy and unlawful interference with economic relations committed by marketing company? • Key issue at hand with this is in determining whether the marketing company (AIM) was an employee OR a independent contractor Decision/Analysis: D not vicariously liable.

• Why vicarious liability? (*mentioned above in previous case*) o Provides a just and practical remedy to ppl who suffer harm as a result of consequences suffered by an employee ▪ Critics are fearful of “deep pockets” o Deterrence of future harm as employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision • Employee vs. Independent Contractor debate at issue here: o As opposed to the employee/employer relationship, typically the independent contractor relationship DOES NOT give rise to vicarious liability o The difference lies on the
element of control that the employer has over the direct tortfeasor (the worker). IF the employer does not control the worker’s actions, the policy considerations will not be satisfied, being that of just and practical remedy and general deterrence of future harm. Vicarious is only fair in principle if these 2 considerations are in play. o The judge in this case lays out many cases at common law that offer tests to determine whether a person is considered an employer or independent contractor, and rejects the idea that any of them can be universally applied to all cases. BUT, the judge is persuaded to apply the test laid out in Market Investigations, which laid out the central q of whether the person who has been engaged to perform the services is performing them as a person in business on his own account. ▪ THE ENTERPRISE TEST(Here, the level of control the employer has will always be a factor, along with other factors such as the use of own equipment, helpers, financial risk, degree of resp of investment and management, and worker’s opportunity to profit from performance. • IN APPLYING THIS TEST TO THE CASE AT BAR(AIM was in business on its own account i.e. an independent contractor, thus the D is NOT vicariously liable for AIM’s tort Ratio: To determine, there is not one conclusive test. You need to look at the totality of the relationship of either employment or independent contractor. The enterprise test(want to look at whether a person is in business on his own account

**FOR THE MOST PART, DOCTORS ARE CONSIDERED TO BE INDPENDENT CONTRACTORS AND NOT EMPLOYEES – with limited instances when they are actually employees i.e. anthesisologist. What does this mean? Hospitals cannot be held vicariously liable for negligence of doctors **it is in best interest to settle in these positions, b/c don’t want it to be taken to crt to take chance of being held vl in cl


The law of torts deals with a wide range of damages and loss. It is personal injury and fatality claims, however, that have presented the most significant challenge to the Canadian law of torts. The 20th C witnessed a rising tide of accidental personal injury and death and an associated public
demand for security from the personal and economic consequences from it. The law of torts has responded to the problem. The concept of fault-based liability was expanded to cover a wide range of injuries, so long as they were reasonably foreseeable, and moreover, the principles of tort law were liberalized to facilitate claims and expand the range and quantum of personal injury compensation, through the development of liability insurance and by an acute judicial awareness of the power of liability insurance to spread accident costs throughout society.

In spite of these efforts, tort law has proved incapable of providing the degree of security from personal injury losses that the public has demanded, mainly b/c of the conceptual limitations of fault as a compensatory mechanism. A fault system can never provide universal coverage and compensation for all accident victims. It is designed to help those that have been injured by wrongdoers. Those who suffer as a result of innocent conduct, their own carelessness, or bad luck are beyond the scope of tort remedies. Also, the tort system is slow and expensive and unpredictable. These limitations have led to 2 contrasting developments: (1) gov’t initiatives creating alternative or supplementary compensatory systems designed to compensation to a wider range of victims – at the heart of the welfare state, and (2) the incomplete recovery of both torts and gov’t initiatives has led to a much greater use of private sector 1st party insurance instruments tailored to individual circumstances. Government Initiatives: first introduction was with worker’s comp for workplace accidents and industrial disease, and was in response to lack of coverage and compensation in tort law for disabled workers. Workers gave up their tort remedies in return fro guaranteed no-fault comp. The prov schemes, which are administered by a public body and funded by levies paid by employers, provide comp for lost income, rehabilitation expenses and other associated losses. Later in the century, despite the compulsory 3rd part auto insurance, still concerns about lack of full comp. Various prov gov’t responded by add-on no-fault schemes that pay moderate no-fault benefits to all the victims of auto accidents while preserving the right to sue in tort. Others have modified no-fault plans that restrict injured persons to no-fault benefits unless their injuries or losses exceed a certain threshold
of seriousness. Other social welfare programs include EI, Canada Pension Plan, OHIP. All these gov’t initiatives collectively are resp for the distribution of a huge amount of $ to vast numbers of injured persons. **at one time it was thought that this growing tide of gov’t intervention would ultimately lead to the replacement of tort law (NZ is the only cl jurisdiction to implement no-fault comp scheme), but the fight against gov’t deficit financing, the retrenchment of social spending and the pol’cal swing away from social welfarism makes that unlikely in the foreseeable future. Private Sector 1st party Insurance: currently, there is a greater interest in the potential of private sector insurance industry to provide more complete and affordable first part insurance instruments covering all kinds of personal disability. Life insurance is the most established and common for of 1st party insurance. Disability insurance is less common. **the result of these various developments is that current Canadian system of comp for accidental personal injury and death is an amalgam of tort liability, no-fault schemes and 1st party insurance. The last two dwarf the tort process.

Goals of Tort Law: Are they met?

deterrence/safety, compensation, corrective justice, empowerment, appeasement/retribution, accountability/functions as an ombudsperson (Linden), tort plays an educative role, its importance as a form of “civic theatre” (White, quoted in Klar at 88)

holding wrongdoers accountable for misconduct

** Some times no-tort can be no-fault (i.e. Worker’s Compensation scheme). Otherwise, fault has nothing to do with the regime, but criminal injuries scheme is NOT no-fault No-tort allows for collective responsibility- when you organize a society a certain way, there are going to be accidents that the tort system cannot deal with properly.


little effect on most accidents resulting from inadvertent negligence; in other areas, may be over-deterrence, like doctors or may be under-deterrence – e.g. wrongful death is cheap (Feldthusen 775)

Problems: most potential P’s do not sue, great delays, no correspondence between fault and damages, unpredictability (Ison 771: “forensic lottery”; Sugarman 776: whimsical- winning can depend on ability to go through with process, finding lawyer, etc.), insurance absorbs costs in 90% of cases (Sugarman 776)


tort inadequate as a compensation mechanism- small proportion sue, smaller proportion succeed after years of litigation (Feldthusen 773)

Problems: irrational (i.e. needs exist without fault), most injuries not compensated, delay, lottery, costly (access to justice issue and efficiency issue)

Corrective justice

tort promotes individual responsibility

wrongdoers should be responsible for restoring persons who they have wronged (Klar 778; supp 89)

injured persons should be responsible for injuries caused by their contributory fault

has a ‘air of unreality’- it is the insurer who gets paid!

employment (~20% of accidental injuries)

automobile (~33% of accidental injuries)

violent crime

health care (iatrogenic injuries)?

“If This is Torts, Negligence Must be Dead” Bruce Feldthusen • Advocates of no-tort have made a convincing case that it properly compensates and that torts does not represent a rationale system. As an alternative, no-fault does not have to be considered as an alternative to negligence as a compensation scheme – i.e. motor-vehicle accidents is a no-fault threshold, which is successful *Torts is too unpredictable and slow as a means of rat’l recovery for auto insurance o Thus, recommends a first party compensation insurance for motor-vehicle accidents, based on need i.e. injury = this is the sensible way to go, as opposed to negligence liability • Also argues that tort fails in deterrancce. The deterrence theory supporting a tort system is the argument that the prospect of being held liable will deter negligent conduct. But, punishing ppl for momentary lapses in negligence is hardly deterring – the accidental behaviour is often not even intentional

(a) The Effect of Liability Insurance on Tort Law
Final Report on the Ontario Task Force on Insurance aka Slater Report Most injuries are dealt with outside ct system, on a no-fault basis – (report from the 80s – figures are out of date) but significant, in terms of the proportionality of ct ordered remedies in torts. The Slater Report sets out to considers the diff goals that the tort system wants to achieve and whether it does or doesn’t. The scope of tort of neg has expanded too much – over the last century covers more and more activities (from but-for to material contribution) from an initial emphasis of deterrence we have gone to compensation, as a result of the respond to changing needs of society (i.e. judicial compassion and expectations of society). Now, there is a fundamental tension b/w deterent function and compensation-insurance function

Most injuries are settled outside the tort system
• insurance/deterrence dilemma (tension b/w corrective and distributive justice) • personal injury area has been transformed from a mechanism primarily concerned with deterrence to one whose main purpose is compensation (ever meant for deterrence writ large?) ( New South Wales Law Reform Commission: “It is difficult to find any empirical evidence which proves that…fault operates as an effective deterrent.” • Judges keenly aware that in almost all cases the D is not paying, and that they are in the last analysis deciding whether or not the P should be compensated from insurance monies – examples? perhaps in Mortimer; not so in Dobson

• It was in the success of modern liability insurance that the seeds were planted for the inevitable failure of tort • The courts know they cannot deter; they also know they cannot fully and completely compensate all victims for all accidental injury (tort not supposed to compensate for ALL injuries) • Justice Krever noted that judges will tend to find “fault” where none exists, so that totally innocent Ps who suffer catastrophic injury can be adequately compensated by the wealthier insurers of equally blameless Ds o They are in a straight-jacket in some ways…have to find fault b/c finding liability threatens credibility of decisions, b/c you would have to force accidnts into a limited box where they don’t actually fit • Answer lies in separating compensation function from deterrence function • Why tort-insurance system cannot and does not achieve deterrence objective o most injured people do not sue

o highly elastic doctrinal norms which adds unpredictability o years may pass, further dilutes deterrence
o no relationship b/w severity of sanction (damage) and degree of fault o judgment rarely paid by individual wrongdoer
o “individual last moment driver mistakes – undeterred by fear of death, injury, imprisonment, fine or loss of license – surely cannot be deterred by fear of civil liability” • Basic reasons why tort-insurance system remains an ineffective and inadequate compensation mechanism: o compensation paid on an irrational basis (don’t compensate 58-year old patient injured in non-negligently administered surgery) ▪ “if the compensation mechanism is intended to compensate for accidental injury, it should compensate for all accident injury” – should it? o more than half of all modern injuries go uncompensated o there is enormous delay

▪ would not many successful Ps trade the ‘justice’ and ‘satisfaction’ of litigation and the non-pecuniary damages for the relatively low-cost, fast and secure benefits that would be available under a no-tort compensation scheme? o present system riddled with unpredictability and uncertainty – most crucial criteria of payment largely controlled by chance (lottery aspects of litigation) o inordinate financial cost of tort – large portion of premium dollar eaten up by transaction costs ▪ less than 50 cents paid out in compensation – 80-90 cents for no-tort insurance plans • In the personal injury area, tort should not be used either for deterrence or for compensation objectives o Deterrence ( combination of premium pricing and Criminal Code enforcement o Compensation ( fair and more expeditious no-tort insurance system

Slater Recommendations:
Tort doesn’t work for compensation or for deterrence so we should separate these functions a. Now – Tort law should be replaced entirely in the automobile accident field and be replaced with a no-fault system (short term) b. Middle term – Replace tort entirely for all accident compensation – New Zealand route c. Long term – adopt a comprehensive compensation scheme that works for both accidents and disease – why bother making a distinction

Flaws in Slater analysis

1) does not consider objectives of tort law other than compensation and deterrence (e.g. educative function; therapeutic value of litigation; public accountability; promotion of values by corrective justice model, e.g. individual responsibility for wrongdoing) 2) evaluates tort law by reference to goals it has never sought to achieve (deterrence of all behaviour that causes accidents; compensation of all victims of accidents)

Refute to Slater’s arguments (Ryder):
• Need to keep in mind the true objective of tort law: Tort law not
designed to compensate injuries at large, but injuries caused by fault • Above arguments distort the true objective of tort law – tort law has only sought to compensate when the need to deter and compensate is linked (not deter and compensate generally)

• Corrective justice model that seeks to shift losses to Defendant when his or her actions has caused that loss • Notion of individual morality and taking responsibility for one’s actions • Means of holding powerful corporations accountable for their actions • When people are sued and held accountable in front of an attentive media, tort law serves an important function – important public education component that could not be achieved through decisions by an administrative board

“The Osborne Report: “No” to No-Fault” (1986) Klar *rejects Slater’s proposal and rather recommends that existing tort system remain in place, but there be an expanded no fault system that be put in place as well for motor vehicles

• Tort law symbolizes a principle of justice which ought to be maintained • Wrongdoing should have consequences and wrongdoers should be responsible for fully restoring their victims “existing no fault benefits ought to be substantially expanded, made truly no fault in their character and that the right to individual compensation in the tort system ought to be maintained – need to sue reduced; the right to sue has been preserved.”

Lewis Klar – comment on Osbourne Report 1989
– agrees with retaining right to sue supplemented by no fault benefits: o changes in Ont have made it easier for victims of motor vehicle accidents to make tort claims and receive increased awards o no fault systems do not have a substantial economic advantage o although liability insurance does weaken the deterrent sting of a tort judgment, the threat of increased premiums, the danger of the insurance company seeking indemnity from the insured and the possibility of policy limits being exceeded and the excess becoming the responsibility of the wrongdoer are factors which create a deterrent influence o Moral aspect of the law – rights of victims and the obligations of wrongdoers to their victims – endorses values and virtues of current system o Could solve problem of delay by periodic payment methods rather than lump sum o Should channel efforts into improving litigation process – however, litigation rare in itself The Choices

• Committee did not consider the fault/no-fault outside of the contest of motor vehicle accident compensation law- but tort law covers a much broader range of cases- so you cannot look at all tort law in this context • no-fault will work best in motor vehicle accident area- no need for deterrence and there are administrative schemes- if no fault doesn’t win here, it won’t win anywhere • Osborne considered compensation systems for injuries caused by motor vehicle accidents: pure tort, tort system with ad on no-fault benefits, pure no-fault, threshold no fault and comprehensive no-fault Made in Ontario Compensation Scheme

• Debate concerning tort law frequently ignores jurisdictional differences upon the issue- other laws have made benefits more available to victims- plus liability insurance, social insurance and medical insurance make each issue unique The Costs

• Compensation of costs is impore costly than no-fault compensation- but claims were refuted • No liability insurance crsis- was never directed at automobile liability insurance- no crisis of price or availability of insurance in Ontario Deterrence

• Standard position: tort law exercises an ineffective deterrence influence in cases of motor vehicle accidents- • threat of increased premiums and danger of insurance seeking indemnity from insurance will create a deterrent influence • tort law does influence behaivor and deter accident-producing conduct Justice and Fairness

• no fault has foundered because of the personal injury bar an dpoliticians was ‘unconvincing’ • Osborne report rejected the sentiments expressed that an educated public would endorce no-fault once it was explained to it Problem of Delay

• Great delay in time of accident- frustrating to victims and to insurers- but it is because of calculating the lump sum, which is important • Lump sum method is not necessary component of fault-based compensation law?? Litigation Process

• Litigation process is accused of being slow moving, expensive, risky and embittering • Response: can eliminate or lessen the problems and litigation is the rare exception in the resolution of motor vehicle claims Conclusion

• Osborne Report recommended the continuation of the mixed fault and no-fault based compensation • Want a substantial explanation of no fault benefits and eligibility criteria for the benefits

Range of options:
0) pure tort ( “a retrograde step, not justified by current social policy” 1) add on no-fault (statutotry entitlement to no-fault) ( Osbourne Reccomendation(claimants remain entitled to being a tort suit, but right is supplemented by right to claim no fault benefits pursusant to mandatory insurance policies o immediate no-fault benefits paid; tort avenue remains open – any no-fault benefits received reduced from award of damages o **not feasible b/c of the drastic increase in insurance premiums that would result 2) threshold no fault ( **current system** no right to sue except with serious injury – minimum threshold which claimant must meet to have recourse to tort law to recover non-pecuniary losses – can’t sue for those under threshold 3) pure no fault ( Slater Report Recomendation – no right to sue – victim entitled to no-fault benefits exclusively, right to sue eliminated • Not feasible because of the sheer volume of claims; would clog the system leading to inefficiency

Osborne Report recognized changes in Ontario which have made it easier for victims of motor vehicle accidents to make tort claims and receive increased awards • Proponents of no-fault make cost arguments – Osborne found that 35.5% of premiums go to expenses, 64.7% go to pay claims • Argues significant deterrent effect in increased premiums, danger of insurance company seeking indemnity, possibility of policy limits despite insurance

• “Tort law’s capacity for fairness and justice should not in my view be ignored. The public’s sense of justice, of what is fair and reasonable, must be taken into account.” – “The public’s sense of fairness will not be satisfied if fault is left to be dealt with solely through the criminal justice system and the premium rating system.” – sense of what’s right taken into account in compensation • Osborne Report traced delays in litigation to lump sum damage awards – requires Ps wait until medical condition stabilized and can be assessed • 2 responses to litigation criticism:

o better to channel one’s efforts into improving court process o litigation is rare exception in resolution of motor vehicle accident claims (2-3%)

Non-tort schemes in Ontario (i.e. OHIP and worker’s comp)
Workers Compensation
• enacted in 1914
o Reasons for enactment: deficiencies of common law of tort- inadequate compensation (CN, VAR, FSR), cost, conflict, delay, inefficiency, uncertainty ▪ Historical Deficiencies of common law of tort: Inadequate compensation (CN, VAR, FSR) • Contributory negligence (at the time- complete defense) – injured worker could be denied all recovery if s/he failed to take care for their safety (even if failure was modest). • Voluntary Assumption of the Risk – (still complete defense but was at the time given a much broader scope) P agreed either explicitly or implicitly to take on both the physical and legal risks of D’s negligence; now involves subjective assumption. At the time of legislation, courts held that Ps could not recover if they knowingly confronted risks in the workplace – ie. agreed to take them on by accepting employment in that workplace

• Fellow Servant Rule – if P’s injury was caused in part by the negligence of a fellow employee, then an action against the employer was barred • Cost: Costs of litigation very high and beyond the reach of many workers of modest means • Conflict: Law of tort promoted a conflictual
relationship between employers and employees • tort actions for work-related injuries against employer/fellow worker abolished, and replaced with workers’ entitlement to no-fault benefits • employer’s obligation to fund the scheme

• Current leg is the Workplace Safety and Insurance Act, 1997 • Enactment support by both employers (efficient welfare system) and workers (the triump of the acturary), and not opposed by lawyers of private insurers • Reasons for enactment: deficiencies of common law of tort:

1 cost

2 conflict

o delay

3 inefficiency

o uncertainty
o inadequate compensation (CN, VAR, FSR)
▪ FSR( Fellow Servant Rule – if negligence on part of another worker, company not liable ▪ Delay
▪ Inefficiency
▪ Uncertainty

Basic features of workers’ comp
• entitlement to benefits for “personal injury by accident arising out of and in the course of employment” [s.13(1) of WSIA] or for occupational disease “due to the nature of the employment” [s.15(1)] • benefits payable on no-fault basis

• fault relevant only if it takes an employee out “of the course of employment”, or if it amounts to “serious and wilful misconduct” [s.17] • entitlement to benefits is in lieu of all other rights of action a worker or family members may have against his/her employer for work-related
injuries [s.26(2); s.28(1)]

injured workers’ trade off: right to sue surrendered in return for statutory entitlement to no-fault benefits ( fair trade?

Benefits available

health care [s.33]

loss of earnings [s.43]

non-economic loss for permanent impairment [s.46]

death benefits [s.48]

0. WSIA cut benefits: LOE 85% (down from 90%); indexing reduced; stress claims restricted [s.13(4)]

**Problem? Statutory recovery less than negligence damages
• In negligence tort: successful P’s entitled to full compensation tailored precisely to his or her damages (ex. Full replacement of all lost income, health care coverage, pain and suffering, loss of enjoyment of life etc.) • Statutory recovery tends to be capped. Benefits do not amount to 100% of lost earnings (ex. Lost earnings @ 85%) • Economic downturns create political pressure to restrict worker’s comp benefits Benefits Available: Health care, Loss of earnings, Non-economic loss for permanent impairment, Death benefits

(b) Towards a Comprehensive No-Tort Compensation Scheme?

“NZ’s Accident Compensation Scheme: 20 Years On” Palmer New Zealand’s Accident Compensation Scheme – no fault no tort regime in NZ – only cl jurisidcition to have gotten rid of fault completely – can’t have tort action for most personal injuries. Based on concept of distributive justice and recognition that this being the case there is a comm. resp Accidents are going to happen ppl are going to get hurt – so resp of soc as whole to take care o Palmer – the corrective justice principle that is found on one ought to have the harm paid for by the harmdoer fails– the principle is not just and not fair to ppl that have been harmed as result of accident o Principles underlying the system: most importantly community responsibility focus ▪ community responsibility

▪ comprehensive entitlements
▪ complete rehabilitation
▪ real compensation
▪ administrative efficiency
• 1992(intro of fault concept by another name with respect to med malpractice – requirement that to qualify for this had to est that injury was result of med error or mishap o Since article – in 2005(medical injuries – New Zealand removed a fault principle in this area (medical area) • took the premise underlying Worker’s Compensation, (trade the right to sue for right to compensation) and dropped the activity specific limitation • bar on civil action and in its place a right to claim compensation from the Accident Compensation Scheme

• 5 principles of community responsibility, comprehensive entitlement, complete rehabilitation, real compensation, and administrative efficiency were the principles that drove the scheme • basic approach is that so long as the event was unintended by the victim it was personal injury by accident • didn’t impose any significant new costs – collapsing old schemes into one: Worker’s Comp., Automobile Insurance, Liability Insurance etc.

• different accounts set up: Motor Vehicle Account (18%) (comes from portion of gas tax and portion of fees that drivers pay when they renew licenses etc.) Employer’s Account (55%), Earner’s Account (Levies from people’s paychecks; pays for non-work related non automobile accidents) Non-Earner’s Account (10%) (to cover accidents of people not in the paid labour force – funded by general tax revenues by the gov’t), Medical Misadventure

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